Consideration of amendments on Report resumed.
7: Before Clause 7, insert the following new Clause—
“Welfare for child immigrantsImmigration Service: welfare of children
After section 11(1)(m) of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare) insert—
“(n) the Borders and Immigration Agency.”.”
The noble Baroness said: My Lords, the amendment seeks to place a duty on the Border and Immigration Agency to safeguard and promote the welfare of children who pass through its care by amendment of the Children Act 2004. We first championed the issue of children in the immigration and asylum process with cross-party support in 2004. Moreover, during the passage of the UK Borders Bill last year, the Conservative Party, with widespread backing in both Houses and from all parties, again raised this issue and voted on it.
In Grand Committee, the Minister, while appreciating the strength of feeling on the issue, felt bound to point out that we lost the vote. He did not point out that it had been lost by only one vote and by nine votes in 2004. We have therefore brought this important issue back to your Lordships’ House. Once again, it has strong and widespread support, for which we are most grateful.
The Government, on the other hand, are opposed to placing this duty on the Border and Immigration Agency. They have argued consistently that introducing such an obligation will detract from the agency’s primary purpose. However, this argument does not hold water. Many other agencies and bodies have duties to safeguard and promote the welfare of children that are supplementary to their primary function—the police force being the most notable and analogous example. The specific duty of care is not contradictory to the primary function; it simply qualifies the manner in which the primary function is exercised.
It is not our intention to hinder the Government in the important work on asylum and immigration that they undertake on our behalf. As my noble friend Lady Hanham said during the passage of the UK Borders Bill, this requirement would not prevent the implementation of a removal direction for a child or his or her family. It would at most affect the manner in which the Border and Immigration Agency did that job. This amendment would ensure that these children, whose narrative is starkly different from that of so many other children, do not fall through the cracks but will receive proper care and attention. For anyone who thinks that that is not a problem, I suggest that they read the excellent and disturbing report published in January by Barnardo’s, entitled, Like Any Other Child? Children and Families in the Asylum Process.
I fully acknowledge that the Government have moved considerably on this, with a requirement for the Border and Immigration Agency to have regard to a code of practice to ensure that in the discharge of its functions children are kept safe from harm. The Minister noted in Grand Committee that this would not be a token document. The code of practice has been welcomed by the children’s charities and organisations which do so much amazing work in this area. I appreciate the trouble that the Minister has taken to ensure that Jeremy Oppenheim, the children’s champion for the Border and Immigration Agency, contacted us and I am most grateful to Mr Oppenheim for his letter.
However, the fact remains that while there is widespread appreciation of the code of practice, the Border and Immigration Agency needs only to have regard to it. The overwhelming view is that a statutory duty is a more appropriate way to ensure that the welfare of these children is promoted and that their interests are safeguarded. This amendment gives a visible sign that these children also matter. I beg to move.
My Lords, I support Amendment No. 7. In the letter of 25 February from the children’s champion of the BIA, to which the noble Baroness, Lady Morris, referred, Mr Oppenheim referred to the agency,
“taking a proactive approach to protect children from harm”.
I am afraid that this phrase, which has been consistently used by the Government when promoting the new code of practice, is taking a negative attitude to the matter of children’s welfare. Protecting a child from harm is not the same as promoting his welfare. If you take the child’s survival without undue harm as being represented by zero on a scale, harm would be -1, -2, -3 et cetera. But actively promoted welfare would put the child up to +1, +2, +3 et cetera. In other words, the child being well, happy and successful, rather than just not suffering harm, is a plus on the scale. I am sure that that is what the noble Baroness, Lady Morris, and all of us in this House want.
I was most concerned to read in a Children’s Society report on 13 February about the shocking plight of some asylum-seeker and refugee families in the West Midlands who are living without heating, electricity or access to food. In one case, a family of six were living in a single room. That is not promoting the welfare of children and it has to stop.
Amendment No. 8 concerns a population of children which somewhat overlaps the population about which the noble Baroness, Lady Morris, has just spoken. These are unaccompanied children who are seeking asylum or who have been identified as having been the victims of trafficking. The amendment seeks to ensure that they have a guardian, who is preferably appointed by an independent body. Since we debated this amendment in Grand Committee the Children’s Commissioner for England has carried out an investigation into how such children are treated in the London Borough of Hillingdon, the borough nearest to Heathrow, which therefore carries an enormous burden in this respect. As part of this report, issues about the lack of resources provided to the borough by the Government were uncovered, as were a number of issues about the understanding of the powers of the commissioner. However, I do not intend to major on that today, although it would be an important subject for a debate at another time.
What I would like to point out is that the commissioner’s conclusion was that these children should have a guardian appointed for them, preferably by an independent body. That is exactly what my amendment would do and I am delighted to have the commissioner’s support for it. He found that unaccompanied asylum- seeking children had little understanding of what it means to be looked after, the responsibilities of the local authority or their own rights, while some did not seem to have a social worker, and that many of those who had one did not know who she was. His report states:
“The views of the children and the file reviews of this group of children once again indicate the pressing need for children to have guardians. These guardians should remain in regular contact with the child throughout their application for asylum and until a final determination is made”.
I would stress that this person should not only assist the child to get through the legal system and make sure that he understands what is going on—now that children under the age of 12 are being interviewed, that is all the more important—but ensure that the child’s welfare in all matters is undertaken properly.
In our debate in Grand Committee the Minister misunderstood me in a reference I made to CAFCASS. He may have thought that I had claimed that unaccompanied children have no access to CAFCASS if their case should come before the family courts. Of course I accept that they do, but I was actually making the point that unaccompanied asylum-seeking children have no access to an equivalent source of help when their case comes before the Asylum and Immigration Tribunal. The Government have repeatedly pointed to the Refugee Council children’s panel as a solution to this problem. I can tell the Minister that the council does not have adequate resources to meet all these needs. I quote Liz Barratt, a solicitor at Bindman and Partners, who says:
“The panel simply does not have the resources to allocate an individual adviser to each unaccompanied or separated child referred to it, and therefore it is not true to say that it provides those children with representation. It cannot even allocate an adviser to all such children under 15 as it used to … I think they are overwhelmed”.
These are the most vulnerable children and our system is failing them. A guardian would be able to help, and I do hope that the Government will think again.
My Lords, before I support these amendments, I should apologise for my remarks earlier. They referred not to Amendment No. 3, but Amendment No. 22. I am reminded of the late comedian Eric Morecambe, who when challenged on how he played Grieg’s piano concerto, replied, “I play the right notes, but in the wrong order”.
It is impossible to reconcile the Government’s assertion that every child matters with their continued refusal to include the Border and Immigration Agency within the scope of Section 11. This is not an absolute duty; it simply requires agencies to “make arrangements” and to,
“have regard to the need to safeguard children and promote their welfare in the discharge of their functions”.
In our view, to deny refugee children this protection, which is afforded to all other children in the United Kingdom, is nothing short of discrimination.
The need for the Border and Immigration Agency to place a greater emphasis on welfare concerns was brought sharply into focus by a recent research report published by the Children’s Society entitled Living on the Edge of Despair. The research found evidence of children growing up in destitution as a result of government asylum policy. Children were found to be routinely going without food, heating or toys. Mothers were forced to prostitute themselves in order to survive. Young people in care had become homeless after being cut off from any help at 18, and pregnant women could not afford to eat. Regardless of their legal status, these children are entitled to better childhoods and we have a duty to protect and support them as we do all other children in the UK. If the mind of the House is to be tested, I hope very much that this and the first amendment are passed.
My Lords, in supporting Amendments Nos. 7 and 8, I declare an interest as vice-chairman of the All-Party Group on the Trafficking of Women and Children, and would remind the Minister, although no doubt he knows this, that some time later this year the convention on trafficked women and children will become part of English domestic law. Article 10.4 requires the United Kingdom, along with other countries which have signed the convention on trafficking, to provide a guardian, legal organisation or agency. I have not got the words entirely right but, I confess, I could not find in a hurry the convention. So there is an obligation on the Government to put into law—I would assume in primary legislation—the word “guardian” for trafficked children.
Consequently it will not be long—because some asylum children are trafficked and some very often have human rights claims—before, at the very least, trafficked children have a person, whether it be a guardian or someone from a legal organisation or agency, when the convention on trafficking becomes part of domestic law. It seems extraordinarily appropriate that it should be ahead of the game by becoming part of children law at this stage.
However, currently the word “guardian” has a special meaning in English family law. It means a guardian appointed by the court. There have been various guardianship laws in the past; for example, the Guardianship of Minors Act and the Guardianship (Refugee Children) Act, and the Children Act 1989 provides for guardians appointed by the court. I cannot believe that the noble Baronesses, Lady Morris of Bolton and Lady Walmsley, expect the court to appoint a guardian. Consequently, I respectfully suggest that it will be necessary either for another word to be used, or the word” guardian” is used with an explanation that this is not a guardian appointed by the court but a guardian appointed as an independent person—independent, certainly, of the Border and Immigration Agency and, I hope, of social services, which are overwhelmed, particularly in areas such as Croydon and Hillingdon—to carry out what the European convention will require us to carry out by the end of the year.
I know the Government are looking at how to implement the trafficking convention and it would be entirely appropriate that this part of it should be done directly. However, I put the warning in about the word “guardian” having at the moment a legal meaning which needs to be broadened if it is to be used in the Bill.
My Lords, I, too, support the responsible and humane principles which underlie the two amendments the House is considering. I support specifically everything that has been said so authoritatively by the noble and learned Baroness, Lady Butler-Sloss, who speaks with immense authority as a former president of the Family Division.
The concept of guardianship in English law, as the noble and learned Baroness so clearly said, is a very special one. It means that guardianship is in the gift of the court. A guardian is an appointee of the court who has a special responsibility towards it. Therefore, while I well appreciate the indication of the noble Baroness, Lady Walmsley, it was never the intention of the drafters of the amendment that it should be a guardianship of that nature.
However, it is important to realise that the European concept of guardianship is somewhat different from our own. In Europe they see guardianship as much on the same par as a person who is an adviser or a helper of the child. Goodness knows there is every need for such a role, but it is not the role of a guardian. In the light of the noble and learned Baroness’s remarks, the question that I humbly and respectfully raise is whether it is necessary to use the term “guardian”. It is important that the officer fulfilling the role is appointed by an independent body and that his remit and responsibilities are clearly set out in statute. Once you have done that, you have answered the problem to a large extent and you have brought English law, in an anticipatory way, into line with the convention even before it has come into force.
My Lords, I apologise that I was not here for a moment or two at the beginning of this debate. I welcome the amendment moved by the noble Baroness, Lady Morris of Bolton. I have discovered in conversations with her that there can be no question of her posturing or playing politics with this sensitive issue. I know that she is deeply committed to what lies behind the amendment and I congratulate her. It is in keeping with something that I believe can be a legitimate feather in the cap of the Opposition: the part that they played in the United Nations Convention on the Rights of the Child and the pride that they took in their part in it. There is an element of consistency there that the House should recognise.
I have one point to make. If we are serious about our commitment to that convention, as I hope we all are, we have an unavoidable obligation to promote the well-being of, not just safeguard, the child. I simply cannot think of a more difficult experience for a child than the circumstances in which they meet the authorities responsible for immigration. We can argue about how they come to be there and the legitimacy of their being there, but it is a time of extreme vulnerability for the child when all our imagination, determination and commitment to the convention should come into play.
This is a matter of not leaving it to other agencies but ensuring that the priority and the resources are there for those in the front line of immigration policy to have our obligations under the convention high in their responsibilities. It is no good simply saying that we are committed to the convention and then, when there is a really traumatic moment in the life of the child, saying, “Oh, well, someone else is responsible at this particular time for promoting their interest; all we’re concerned about here is a minimal function of safeguarding the interests of the child”. That is the time when it really matters.
I suspect that the noble Baroness might have been counselled that she ought to be a bit careful with this amendment because it had quite challenging implications for immigration policy. I would like to place on record my admiration for the fact that, if she did come under such pressure, she withstood it and said, “No, I want to stand by the promotion of the interests of the child at this critical time”. If she has done that, it behoves us all to respond positively to what she has said.
My Lords, I, too, apologise to the House for not being present when the noble Baroness began to speak to her amendment. I repeat a point that I made in Grand Committee about consistency. The noble Baroness, Lady Walmsley, has mentioned the problems faced by boroughs near Heathrow, such as Hillingdon. One of the effects of having so many of these unaccompanied minors is that they have been spread all over the United Kingdom to share the burden between social services around the country, but that means that there is a terrible inconsistency in the way in which they have been treated. One of the good effects of such an amendment, containing some form of statutory duty, would be to ensure some consistency in their treatment, which I suspect would be very welcome not just to the children but to the social services authorities, some of which may not appreciate fully what these children require.
My Lords, perhaps I may start with Amendment No. 7. As the noble Baroness, Lady Morris, said, this issue has been debated by the House several times. The House therefore knows that the Border and Immigration Agency is committed to meeting fully its obligations to children within the immigration context and to working both on its own and with others to keep children safe from harm.
The Border and Immigration Agency appointed Jeremy Oppenheim, formerly director of social services in Hackney, as children’s champion in spring 2006. In response to debates in this House last year, Section 21 of the UK Borders Act provides for the Secretary of State to issue a code of practice to ensure that, in exercising its functions in the United Kingdom, the Border and Immigration Agency takes all appropriate steps to keep children safe from harm. The Act also creates a requirement for the agency to follow the code of practice.
The proposed code of practice, Keeping Children Safe from Harm, which I have circulated to noble Lords who have taken a keen interest in this issue, was published on 31 January. Public consultation on it has begun. I stress that the code will apply not only to Border and Immigration Agency staff, but also, in response to the debate on the UK Borders Bill last year, to its contractors when they exercise immigration agency functions and are in contact with children who are in the United Kingdom. It will apply whether that contact is in person or indirect—for instance, making a decision on papers that has an impact on a child.
The issue before us, therefore, is not whether we are committed to safeguarding children in the immigration and asylum system—the BIA is fully committed to that task—but the best means of doing so. Amendment No. 7 would extend the duty in Section 11 of the Children Act 2004 to the Border and Immigration Agency. In so far as the purpose of Section 11 is to ensure that children are kept safe from harm and are properly protected, the BIA takes its responsibilities seriously; hence the proposed code of practice and the machinery to enforce it. However, our concern is that applying the general terms of Section 11 to the BIA would have a side effect highly detrimental to the public interest; namely, that it would give a further legal basis for litigation to prevent the implementation of immigration decisions over and above the extensive litigation that already takes place in this area. This aspect marks out the BIA from the other agencies mentioned by the noble Baroness, Lady Morris. I reiterate that the code of practice will bring the benefits that would arise from extending the Section 11 duty in respect of child protection while avoiding the serious risk of an increase in legal challenges to removal decisions.
In developing the code, we have worked with important groups such as the Association of Directors of Children’s Services, the Children’s Commissioner, officials in the devolved Administrations, the Children’s Society and Barnardo’s. The BIA is also consulting widely on the content of the code and is actively seeking the views of NGOs and professionals with experience in children and their welfare.
The requirements of the code could not be clearer or more robust. Perhaps I may quote from page 7, which states that,
“the staff of the Agency must act in accordance with the following key requirement: that due consideration be given to the wishes and feelings of the child, parents, or any person with parental responsibility for the child, or whose views in caring for the child would normally be considered relevant. Partnership with the parents and consultation with the child should be the norm whenever a family are being required to comply with the immigration laws”.
Page 8 states that,
“the Code recognises that the Border and Immigration Agency will keep children safe from harm by acting on our concerns about the safety of any child which, in the course of our dealings, appears to be at risk and referring to outside statutory and professional agencies where appropriate. This referral to outside agencies where aspects of protection are involved is an important part of the Border and Immigration Agency’s approach”.
The code is not a document without teeth. There are new, strong training and inspection arrangements to back it up. On inspection, Section 48 of the UK Borders Act created the role of chief inspector of the agency and sets out the chief inspector’s review and inspection functions in respect of the BIA. The chief inspector will have an active role to play in reviewing the agency’s implementation of the code and, crucially, its performance in relation to children. All Border and Immigration Agency staff are currently receiving training on child awareness issues to keep children safe from harm, with two further, more intensive levels of training aimed at those staff members whose work directly affects children. Jeremy Oppenheim, who is overseeing this training work, takes his responsibilities very seriously indeed.
My Lords, I am grateful to my noble friend, who is replying as fully as he always does. Would he please appreciate that those of us who are behind the amendment are specifically concerned with his concentration on safeguarding children? Our argument is that there should be a statutory responsibility at this critical time to promote the well-being of the child, which is not the same thing. That is our commitment under the convention—here is the child in the middle of a crisis or trauma, so how do we start building for its future, not just safeguarding it from harm?
My Lords, I believe that the paragraphs of the code that I read out make clear the agency’s responsibilities in ensuring that children are kept safe from harm. They could not have been spelt out more clearly. We do not believe that it is desirable to extend the 2004 Act because of the issues of more extensive litigation that will follow.
My Lords, I in no way impugn the Minister’s sincerity and sensitivity in this matter, but he said that if the amendments are accepted there is a danger that litigation will follow. Is he suggesting that at present the rights in the document from which he quoted cannot be enforced in the courts of our land? If these rights can be enforced, the amendments would make little difference. If they cannot, they are surely needed.
My Lords, the rights in the code of practice have a statutory effect; it is statutory guidance to which all officers of the agency must have regard. The noble Lord will know that that places a strong legal requirement on them. For all those reasons, we believe that the code and the means in place to implement it meet the legitimate concerns underlying this amendment. We hope that the House will not impede the legitimate workings of the immigration system, which is an issue of real public concern, by supporting the amendment.
On Amendment No. 8, we recognise that services for unaccompanied asylum-seeking children, including children who have been trafficked, need to be improved. Some of the necessary changes that need to be made are described in Care Matters, which applies to all children, irrespective of their immigration status, as do the Bill’s provisions.
However, as the noble Lord, Lord Elystan-Morgan, said, in respect of the concept of guardianship it is the substance of the role that matters, not the name. The reality for most unaccompanied asylum-seeking children is that they already have a long list of individuals who directly and specifically are concerned with their welfare. These typically include not only the Border and Immigration Agency asylum case owner, who will deal with their immigration affairs from start to finish, but, independent of the BIA, the solicitor who assists with their asylum application, representatives from the British Refugee Council’s children’s panel, who provide advice and assistance, their local authority-appointed social worker, the independent reviewing officer, who chairs their reviews, and, in many cases, a personal adviser. Many, especially the younger cohort, will also have their foster parents to turn to for help. We do not believe that it would serve their interests to add yet another level of complexity and duplication to a system that already ensures that there are a significant number of professional and concerned individuals whose roles, and in some cases statutory functions, include supporting the child—so many professionals that it could well cause confusion for children if things are not effectively co-ordinated.
It may be helpful if I set out some of the practical arrangements for unaccompanied asylum-seeking children, particularly how they access legal representation for the purposes of their asylum claim, as I am aware that this is an area of concern. All unaccompanied minors who apply for asylum are referred to the Refugee Council children’s panel within 24 hours of the claim being lodged. The children’s panel is a non-statutory body, but it is funded by the Border and Immigration Agency. The panel does not represent the children in their dealings with the agency but provides appropriate guidance and signposts them to the appropriate services that they need. In practical terms, this normally means arranging for the local authority to look after them appropriately and referring them to a solicitor if they do not already have one.
The funding of legal services for unaccompanied asylum-seeking children is provided by the Legal Services Commission. Legal aid is made available for solicitors to accompany the child to the first interview with the BIA, known as the “screening event”, as well as the later interview, at which the child is interviewed about the substance of their asylum claim. Following recent changes, all unaccompanied asylum-seeking children aged 12 and above are now interviewed. The interview is conducted by specially trained immigration officials and must take place in the presence of a responsible adult.
In previous debates, mention has been made of the difficulty that children have in giving clear instructions to solicitors. Obtaining relevant information from children can, of course, present difficulties, but it is the responsibility of solicitors who have a recognised specialism in asylum and immigration practice to ensure that relevant information is obtained to represent their client effectively. This is why children are interviewed by specially trained asylum caseworkers and why clear instructions exist to ensure that proper account of the person’s age and circumstances are provided before asylum applications from children are refused on credibility grounds. Similarly, the Asylum and Immigration Tribunal has issued guidance to immigration judges on the issue, as well as making it a requirement that the child is represented by an appropriate adult at all appeal hearings. Given these requirements, we are not persuaded that adding an extra layer of complexity to this process by the intervention of a legal guardian would provide a real benefit.
The noble and learned Baroness, Lady Butler-Sloss, made an important point about the Council of Europe Convention on Action against Trafficking in Human Beings. As she rightly said, Article 10.4 of the convention calls for the representation of a trafficked child by—these were the words that she sought to give the House—
“a legal guardian, organisation or authority which shall act in the best interests of that child”,
as soon as a child victim is identified or there are reasonable grounds to believe that the child is a victim. We believe that the convention obligations are met by existing officers acting on behalf of the child in question, as I set out, and that the convention allows member states options other than legal guardians to meet the requirements of Article 10.4. For all these reasons, I hope that the House will not support these two amendments.
My Lords, I am most grateful, as always, to the Minister for his courteous and detailed reply. I thank all noble Lords who added their names to the amendment and all who spoke so eloquently. I thank the noble Lord, Lord Judd, for his kind words.
The noble Baroness, Lady Walmsley, is not allowed to reply at Report but, following this debate, particularly given the comments of the noble and learned Baroness, Lady Butler-Sloss, she may well wish to consult on the measure and perhaps bring it back at Third Reading.
As regards the now familiar argument used by the Government, I say only that the Refugee Children’s Consortium has taken legal advice which suggests that Section 11 of the Children Act 2004 would not prevent the Home Secretary from implementing the removal directions for a child or for his or her family and would at most affect the manner in which the removal occurred. As I said, the code is welcome, but the BIA needs only to have regard to it. We think that this needs to be stronger.
We heard today from the noble Baroness, Lady Walmsley, and the right reverend Prelate the Bishop of Portsmouth of the horrors faced by these children. Many of them, as the noble and learned Baroness, Lady Butler-Sloss, said, are trafficked. They are the very children whom we are seeking to champion. Wherever these children may originally have come from, and wherever they may go, they are first and foremost children and while they are in our country they should be afforded the rights of every child.
In Grand Committee, the noble Baroness, Lady Kennedy of The Shaws, said:
“When the Children Bill was going through this House … I remember thinking what wonderful legislation it was and how content I was that here was something on which I could agree with my Government … Then, one evening, I came into the House and took my place on my Government’s Benches. I was shocked to hear an amendment being moved by the Minister that would keep out of the great advances being included in the legislation the children of immigrants. Child asylum seekers would not have the protection that the Children Bill would provide to others”.—[Official Report, 14/1/08; col. GC 433.]
We now have an opportunity to right a wrong. I wish to test the opinion of the House.
8: Before Clause 7, insert the following new Clause—
“Guardians for children with special protection needs
(1) As soon as a child under 18 who is separated from both his parents and is not being cared for by an adult who by law or custom has responsibility to do so makes an asylum claim or a human rights claim or is identified as a victim of trafficking, a guardian shall be appointed to represent that child.
(2) The following expressions have the same meaning in this section as section 113 of the Nationality, Immigration and Asylum Act 2002 (c. 41)—
(a) “asylum claim”;(b) “human rights claim.”(3) “Trafficking” means the arrangement or facilitation of the arrival in, entry into, travel within, or departure from the United Kingdom for the purposes of exploitation as defined in section 4(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19).”
9: Clause 7, page 5, line 40, at end insert—
“( ) In fulfilling his obligations under subsection (1) of this section the Secretary of State shall have regard to children’s need for supportive parenting.”
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 11 and 39. I welcome the government amendment that was introduced in Committee giving the Secretary of State a duty to promote the well-being of children in care. My amendment specifies that, as part of his general duty to promote the well-being of children in his care, the Secretary of State should also be concerned to ensure that, so far as possible, those children enjoy supportive parenting.
I believe that having a reference in the Bill solely to the well-being of the child is not enough because the meaning of “well-being” in the context of children is not absolutely clear. For example, the guidance that the Government provide for the Human Fertilisation and Embryology Authority seems to suggest that, in considering a parent’s suitability for IVF treatment, the welfare of the child who may be born as a result of that treatment can be adequately provided for if it can be shown that the child is not likely to be exposed to serious harm. In the previous debate, the noble Lord, Lord Judd, referred to the difference between promoting the welfare of the child and just safeguarding the child from serious harm. It seems to me that there is a gradation of meanings in the phrase “the well-being of the child”, going from “promoting welfare” through “best interests” down to “safety from harm” and, finally, to “safety from serious harm”. In my view, “safety from serious harm” is not an adequate definition of the welfare needs of the child, especially for a child in care. On this, the Government seem to agree with me because they have introduced into the Human Fertilisation and Embryology Bill the phrase “supportive parenting” to fill the gap to indicate the level and kind of care that every child needs and is entitled to. If every child born by IVF is entitled to well-being and supportive parenting, surely a child looked after by the state should also be entitled to those things.
In Amendment No. 11, I suggest the same general definition of the phrase “supportive parenting” as the one that the Government agreed to put in guidance in the Human Fertilisation and Embryology Bill. Incidentally, the wording is taken from the Children (Scotland) Act 1995. It may well be that this definition should also be in guidance rather than in the Bill, and I should be glad to hear what the noble Lord feels about that.
These amendments are important for children in care for the reasons that I have just given, but I believe that they could also serve a more general purpose—that of helping parents and prospective parents to be more aware of the parenting needs of the child. This Government believe, rightly, that every child matters. If that is true, surely it is important that all parents should at least know what their child needs from them.
Most, but not all, mothers instinctively accept the responsibility of loving and caring for their child. Some fathers do not and some fathers are prevented from doing so by the child’s mother. In our society today, significant groups of fathers do not accept that if a man fathers a child he has an ongoing responsibility for the parenting of that child. Today, about 50,000 children a year—that is, approximately 137 children every single day of the year—permanently lose all meaningful contact with their father. Of course, a birth father is not essential for the successful parenting of a child. Many children thrive without their birth father but many others do not, and too many do not do as well as they might. I refer, in particular, to the fact that they do not develop the self-confidence and social skills that they will need to survive in school and, later, in mainstream society.
Research findings show that good, supportive parenting is easier to achieve through a team of two committed parents working together than through one person struggling alone. It is also true that both boys and girls—but especially boys—learn a lot from having a good father as a role model and from observing how a man and a woman can work together as a team and have an argument without a relationship breaking down. Fathers do matter.
There is no easy solution to the problems in our society today caused by the lack of supportive parenting. However, there are undoubtedly some things that we could be doing and others that we should be doing. One obvious starting point is to reach shared values about how the state, parents and family should share the responsibility for a child’s parenting. What are the shared values of our society on that issue? We have to consider what will work in practice. It simply is not reasonable for Government to expect parents to do their job in our society if they are not clear about what is expected of them.
Unlike Scotland, England has no clear statement in statute law about the responsibilities of parenthood. I fear that today we are sleepwalking into a laissez-faire situation in which fathers and mothers are given little or no guidance about their responsibilities. We leave them to decide whether or not they want to become involved in the care and parenting of their child and, if either or both decide that they do not, the state picks up the pieces. Sadly, that policy is not working very well for two reasons. First, the state is not very well suited to being a parent. Children need parents, or surrogate parents, who are loving, committed and there for them in the long term. All those things are a tall order for an institution. Secondly, the cost of state parenting to taxpayers is very high, which leads to taxpayers’ resistance and to cutting corners to save costs.
I believe that a clear, non-prescriptive statement of what children in our society need from parenting could be helpful to parents, to all those whose job it is to teach or to guide parents and, indeed, to those who give guidance to immigrants arriving in this country about what we expect of them. The purpose of this group of amendments is to bring greater certainty about how Government, Parliament and our society believe that the responsibility of supportive parents should be shared between the parents, the family and the state.
Amendment No. 39 is a repeat of an amendment I tabled in Committee and which received a very wide measure of support from noble Lords from both Opposition parties and from many of my noble friends and colleagues who are extremely well qualified in this area. As a result, the Minister said that he would take the matter away and, although making no promises, consider it again. I am sure he has done so and I shall look forward to hearing what he has to say. I believe that there are problems. However, will the Minister say whether the proposal made by my noble friend Lord Elystan-Morgan to include these things rather than suggest that there should be an absolute definition might be helpful? I beg to move.
My Lords, Amendments Nos. 10 and 40 in this group stand in my name. Amendment No. 40 is an amendment to Amendment No. 39 tabled by the noble Lord, Lord Northbourne, which I support. I want to add a reference to the UN Convention on the Rights of the Child for one simple reason. If it were added to the duties of parental responsibility, the Government would have to do much more about public education so that people understand what the Government have signed up to. If more parents and children knew what was in the convention, I am sure that they would value it and use it in their everyday life. I have seen what a difference education about the convention can make to the standard of behaviour in a school in Hampshire and I know that those children involve their parents and the whole community in activities that demonstrates an understanding of the convention. They learnt that with rights come responsibilities and they respect the rights of others. That is why I am keen for a reference to having regard to the convention inserted into Amendment No. 39.
Amendment No. 10 also puts a reference to the convention into the remit of the Secretary of State to promote the welfare of children, a welcome addition to the Bill made by the Minister on the last day in Committee. That is why I have asked for my amendment to be grouped with that of the noble Lord, Lord Northbourne.
When the UK ratified the convention with cross-party support, the noble Baroness, Lady Bottomley of Nettlestone, then the Health Minister—she is not in her place—said:
“The United Kingdom played a leading role in drafting”—
the UN Convention on the Rights of the Child.
“The convention specifically draws together the rights of the child in one internationally recognised document. It will serve as an international standard against which countries that turn a blind eye to child exploitation, abuse or neglect can be measured”.—[Official Report, Commons, 6/6/90; col. 703.]
In October this year, the UK will be examined for the third time by the UN Committee on the Rights of the Child on its implementation of the convention. One of the committee’s 78 recommendations made in 2002 was that the UK should incorporate the convention into domestic law. My amendment, while not giving children new rights that can be tested in the courts, will introduce a children’s rights proofing process that has hitherto been lacking in policy development.
It is a pity that, in Grand Committee, the Minister did not refer to any increased awareness within government of the need to have regard to and fully implement the convention as required by international law. Peers had a lengthy debate about the relationship between the five outcomes of Every Child Matters and the convention during the passage of the Children Act 2004. Initially, the Children’s Commissioner legislation tied the commissioner to the five aspects of well-being, but not to the convention. After strong criticism in your Lordships’ House, the noble Baroness, Lady Ashton of Upholland, agreed to amend the legislation to require the commissioner to have regard to the convention. Now we have our opportunity to have the Secretary of State have regard to the convention too. Indeed, the Children’s Plan, published only a couple of months ago, suggests that the Government now accept that the five outcomes and the convention are complementary.
We are six months away from the next examination of the UK by the committee. We can expect strong criticism from this international human rights monitoring body on many aspects of law and policy. The Bill gives us the opportunity to start building the right government infrastructure now. We do not have to wait for the committee’s conclusions. It is a long time since ratification. Were my amendment to be accepted, it would show considerable political commitment to the convention and require Ministers to accept the treaty as fundamental to improving the well-being of children in our country.
My Lords, I have put my name to three of the amendments in this group, and shall speak particularly to Amendments Nos. 9 and 11. If I had been speaking on the Children Bill before it became the Children Act, it would not have crossed my mind that it was necessary to put in something about “supportive parenting”. However, that was 20 years ago. We now live a world in which children are born to families with much less regard to the standards of 50, or even 20, years ago.
The whole concept of parenthood seems less well known, understood and cherished than it has ever been before. We have got to a point where 40 per cent of children are born outside marriage. Children are born by IVF, which now has the need for supportive parenting, as the noble Lord, Lord Northbourne, has said. It is necessary that people should be told what supportive parenting is. It should be taught in schools and to young people. There should be something that people can grasp and say, “This is what is meant by supportive parenting”. I do not think it was needed in the Children Act, but it is needed now, so I particularly support Amendments Nos. 9 and 11. As the noble Lord, Lord Northbourne, knows, I am not entirely happy about the proposal to amend Clause 10. The judges are against it. It may be that that would be better placed in guidance—there was excellent guidance for the Children Act—but it needs to be somewhere. For those reasons, I support Amendments Nos. 9, 11 and 39.
My Lords, I rise briefly to support the amendments in this group, particularly Amendment No. 11. I do not think that it would extend the essence of the law. I do not pretend for a moment to carry these things in my mind, so I have been looking at Section 31 of the Children Act 1989, which sets out the concept of harm to a child. The concept turns on questions of the child’s health, his development and his welfare. The child’s benefit is the obverse of that. It is not merely the negation of the concept of harm, but a positive advance in the other direction—a point that has already eloquently been made by the noble Lord, Lord Judd. I submit that Amendment No. 11 does not take the law any further. The three matters that it emphasises—health, development and welfare—are already emphasised in Section 31 of the Children Act 1989. As to the fourth matter,
“guidance to the child in a manner appropriate to his age and development”,
nobody would for a moment argue that that is not already present in our concept of child welfare.
A general question arises, which we debated fully in Committee, about whether we should follow the Scottish precedent. It is a very proper precedent. What Dr Johnson would have said about following the Scottish precedent, I know not, but be that as it may, there is no reason to believe that the needs of children south of the Tweed are different from those of children north of the Tweed. Therefore, I ask the Government to accept that what is already established law in Scotland—which, as far as I know, has not caused any difficulty—should be humbly and chivalrously accepted as part of the law of England and Wales.
Finally, I shall reiterate a point I made en passant in Committee. Rather than have an exclusive definition, an inclusive definition would be very much better and would do no harm at all.
My Lords, reference has been made to Scotland. As I am half-Scottish, from time to time I have an internal battle between the Scottish half of myself and the English half of myself. Not simply on this issue, alas, but on other social issues as well, I find the Scots half of me gaining ground. It looks to the English part of me to do something about that to maintain the balance. I hope that my noble friend will listen very carefully to the arguments.
I support these amendments; indeed, I support the amendment to the amendment. They seem very helpful. On this issue, it is important to recognise consistency and commitment in all parts of the House. I pay tribute to the noble Baroness, Lady Walmsley, who has been a constant reminder to the House of our obligations under the United Nations Convention on the Rights of the Child. For my full timespan, I was a member of the Joint Committee on Human Rights. In that committee, we were deeply concerned about the seriousness with which we followed through and recognised the responsibilities that our signature to that convention implied. It really is quite cavalier and dangerous to sign conventions if it is just a gesture with no follow-through or muscular commitment to delivering on them. We are dealing very much with the need for such muscular commitment.
The noble Lord, Lord Northbourne, is in some ways quite courageous, because it is not altogether fashionable to speak out about the responsibilities of parenthood, and I am glad that he does. I am not sure whether his and my views would coincide on forms of parenthood, because I am heartened that we as an imaginative society are recognising more broadly the kinds of parenthood that there can be and that newer forms of parenthood are in many ways providing just the kind of commitment and care that more traditional forms of parenthood have not always provided. I think that anyone who looks at the situation objectively will recognise that, but that does not mean that the newer forms of parenthood do not also need support and encouragement: of course they do.
I hesitate to take issue in any way with the noble and learned Baroness, Lady Butler-Sloss, because I have unlimited respect for her experience and commitment. However, I ask her gently to reconsider some words that she used. She said that she thought it should be our response to ensure that parents are told what their responsibilities were. Frankly, that is a rather disastrous road to take. We should encourage parents and potential parents to understand what their responsibilities are. This is about education, not hectoring. We need to do a lot more in our schools in this respect, but I am absolutely convinced that, if we are to fulfil our responsibilities, these amendments are highly relevant. I cannot say how fervently I hope that, if my noble friend cannot accept them—of course I hope that he may be prepared to—he can positively and not defensively spell out the full-hearted arrangements that make them unnecessary.
My Lords, I thought that the noble Lord, Lord Judd, was going to suggest that the Minister might not be able to accept some of the amendments, given some of his speech. I shall divide my remarks into three parts. First, I shall not speak on the UN Convention on the Rights of the Child. The noble Baroness, Lady Walmsley, does that magnificently, and I can say only that I support her attempt to get that to underlie the general legislation for children in this country.
Secondly, on supportive parenting, I want us to remind ourselves that we are talking about children in public care and the kind of parenting that those children want. I shall separate that from general parenting. Listening to my dear friend, the noble Lord, Lord Northbourne, whose pressing of the amendment I admire immensely, I felt that I should be sitting alongside my colleague, the noble Baroness, Lady Bolton, on the Conservative Front Bench and saying that this sounds like the nanny state. I am quite sure that many parents in this country feel very strongly that they are doing well to bring up their children. Alongside the noble Lord, Lord Judd, I probably see in my job in CAFCASS as many complex families as your Lordships can ever conceptualise. Many of those families are doing well even in adversity. We must remember that in the new constituted families of a variety of kinds, even where there are a number of step-parents, children do not always suffer. We are talking about preserving those elements of parenting when children are in public care. I ask the Minister for the reassurance that in guidance we have an understanding that these children need more than ordinary parenting. We have to remember that by the time these children are looking for supportive parenting, they need something more. They have usually had experience of broken homes, have often experienced abuse and may have had experience of the criminal justice system, which has caused their parents, who may be responsible, to push them out of their homes. These children often come from backgrounds where there is a great deal of disturbance and they need more than ordinary parenting.
I assume that in guidance, and in the work that local authorities are expected to do with these children, there will be more. That is why we want the elements pointed out by my noble friend; that is, health, good education and all that comes together in well-being. These children need more than anyone else. In the past, we have talked about corporate parenting, local authority general parenting and councillor parenting. We have just got to say that these children need the best professional help that we can give, but with love. That is really good, supportive parenting.
My Lords, I realise that we are on Report, not in Committee, and I shall be brief. Like noble Lords who have already spoken, I am grateful to the Minister for having met us between Committee and Report stages to discuss these issues. I have put my name to these amendments because, like other noble Lords, it is very important that we have a strong, positive message as to what we expect from parents, with a clear definition of supportive parenting, irrespective of who those parents are. Such a definition is needed for educational material for schools; for health visitors and midwives; for those people who are likely to come across the female child in particular when she becomes pregnant—accepting that that often may be sadly an underage pregnancy; and for social workers who are looking after children in care, for whatever reason.
Currently, we could not find a clear, positive definition anywhere. I accept that the Minister probably will say that this cannot be in the Bill, but I hope that it will go into guidance and that he will pick up on the suggestions made by the noble Baroness, Lady Walmsley, who has outlined the UN Convention on the Rights of the Child so often, where again a positive role model is set.
My Lords, as always, the noble Baroness, Lady Walmsley, has made some interesting points. She speaks with great knowledge and passion on these issues. I know that a great deal of work is going on in the promotion of the UNCRC. The noble Baroness often talks as she did today of the rights respecting schools; I hope to visit one soon. They appear to be having a significant impact on behaviour and on pupils respecting one another.
As has already been mentioned, the last Conservative Government not only ratified the UNCRC with cross-party support, but played a leading role in drafting the convention. As the noble Lord, Lord Judd, said on a previous amendment, we are rightly proud of it. However, I acknowledge—I have sympathy here with the Government—that some parts of the convention are more difficult and contentious than others.
The amendments tabled by the noble Lord, Lord Northbourne, present a welcome way in which the duty to promote a child’s welfare is made more specific in what it is to cover and adds to the likelihood of the general duty having more effect and power. It does that without placing any extra burden on the Secretary of State. We are all searching for ways to ensure that children develop healthily, happily and safely into responsible and well adjusted adults. Supportive parents, giving trustworthy guidance, are essential for such development. Wherever possible, that should be the guidance and support of both parents.
As the noble Lord, Lord Northbourne, said, there are many single parents who do the most wonderful job, often in the most difficult circumstances. Their children thrive and they are a credit to them. I wonder therefore if the noble Baroness, Lady Howarth of Breckland, might like to sit next to me, because I genuinely believe that they do a marvellous job. But most single parents do not choose the situation in which they find themselves. We should do all that we can to ensure that both parents recognise and understand—the word used by the noble Lord, Lord Judd—their duties and responsibilities to their children and that both parents, where safety is not an issue, should be allowed to play as positive a part in their children’s lives as possible. I am not a lawyer—I am only married to one—but, as the noble and learned Baroness, Lady Butler-Sloss, said, Amendment No. 39 would be better placed in guidance.
My Lords, this is such an important group of amendments that I cannot resist just saying a few quick words on it. As the noble Lord, Lord Judd, has insisted, promoting welfare is crucial. Some time ago my noble friend Lord Northbourne and I had rather hoped that citizenship would deal with responsible parenting and the promotion of it, and that it would be a crucial part of educating the next generation in what they should expect when they are parents, not just what they should expect from their parents after they have been in conflict with them. So it is about not what children expect their parents to do for them but what they expect to do as parents.
I very much hope that this good definition, which the noble Lord, Lord Northbourne, and the other noble Lords who tabled Amendment No. 11 have put forward, can be used, although perhaps not in the Bill. When we consider the time we were parents, did we do it right? Did we bring up our children in the best possible way? There was not much guidance in those days for ordinary parents. We are talking here about those who we know have got problems and are damaged, as my noble friend has said. I support the intentions behind these amendments and I very much hope that the Minister will be able to incorporate what has been said in his reply.
My Lords, this is a wide and varied group of amendments, and I shall do my best to respond to the very many points that have been raised. On Amendment No. 10, spoken to in particular by the noble Baroness, Lady Walmsley, and my noble friend Lord Judd, the United Nations Convention on the Rights of the Child is an international treaty, which is signed and ratified by the United Kingdom. As such, the UK has an obligation under international law to ensure that the rights set out in the convention are given effect. This obligation does not rely on any specific provision in domestic legislation, but exists entirely independently. In practice, UK law often goes further than the convention requires, as the description of child’s rights in the UNCRC is set out in very broad terms.
The Government take implementation of the convention seriously. Since ratification of the convention in 1991, they have pursued implementation through legislation and initiatives, including the Children Act 1989, the Children Act 2004, the Every Child Matters initiative and, most recently, the Children’s Plan, published at the end of last year by my department. All those programmes are steadily improving the well-being and outcomes for all children and therefore the fuller realisation of their UNCRC rights.
In respect of the new duty in question, the Secretary of State’s duty to promote the well-being of children already encompasses the principles of the UNCRC and the duty as it stands creates an additional legislative vehicle through which the Secretary of State will carry out activities which implement the convention. However, in keeping with the UK’s approach to implementation at large, we do it through the totality of our activity rather than through individual legislative provisions, and we would not wish to depart from that established practice.
I turn to Amendments Nos. 9 and 11 on supportive parenting tabled in the name of the noble Lord, Lord Northbourne. I appreciate that the intention of these amendments is to assist those working with parents and children to be able to explain authoritatively the significance of parenting and the responsibilities that accompany parenthood. I also understand that these amendments have been proposed in particular to respond to those parents specifically who are failing to take seriously their parental responsibilities and who may benefit from targeted support and challenge in this area. These are aims which we entirely support but, as a number of noble Lords have said in their contributions, we are not persuaded that changes to primary legislation are the right way forward. Most parents do not need the assistance of the state in telling them how to bring up their children. However, we fully accept that some parents do need advice and assistance, and we are steadily improving the quantity and quality of the advice and assistance being made available to vulnerable parents and their children. That is why, for example, we are looking at the principle behind the red book, mentioned by the noble Baroness, Lady Finlay, which is given to every parent by their health visitor to track their child’s health development through the first years of life, and we are exploring whether we could use that document to give more advice and guidance.
It is also in recognition that some parents, particularly young parents, need more help that we have allocated £30 million from this year to expand family nurse partnerships, enhancing the principle of the health visitor by providing intensive nurse-led home visiting for vulnerable first-time young parents in England until the child is two years old, well beyond the provision typically provided at the moment by health visitors. Nurses build close, supportive relationships with families and guide inexperienced teenage mothers and fathers to adopt healthier lifestyles, improve their parenting skills and become self-sufficient.
In addition, to help every parent to do their best by their child, we are allocating £34 million over the next three years to ensure that there will be at least two expert parenting advisers in every local authority, and we are expanding school-based parent support advisers. Moreover, just today my department and the Department of Health have jointly published updated guidance on the Child Health Promotion Programme which is for PCTs, local authorities and practice-based commissioners, including health visitors. This is a single programme from pregnancy and early years through to adulthood, and today’s revised guidance focuses on pregnancy and the first years of life. It sets out that on offer to every family is a programme of screening tests, immunisations, developmental reviews and information and guidance to support parenting and healthy choices. The programme will ensure that each family receives support that is appropriate to their needs, with the most vulnerable families receiving intensive interventions and co-ordinated support packages.
Our long-term commitment to supporting parenting through programmes of the kind I have set out—I could describe many others—is the reason why the Government have made it clear in Clause 7(3) that as part of meeting the general duty to promote the well-being of children, the Secretary of State may carry out,
“activities in connection with parenting”.
That is precisely to meet the objectives set out by the noble Lord, Lord Northbourne.
Amendments Nos. 39 and 40 propose to set out in statute the responsibilities of parenthood. As the House is aware, we considered this issue at length in Grand Committee on 17 January. At the end of that debate I undertook that the Government would consider the issue and come back on Report with their view as to whether there is a case for further amendment to the Act on the lines suggested and in line with the practice in Scotland. At the specific suggestion of the noble and learned Baroness, Lady Butler-Sloss, the Government have sought the views of the president of the Family Division and through him other senior judges with experience of family cases, as well as that of members of the Family Justice Council. The common view of these experienced practitioners is that there have been no difficulties for them in managing cases using the current wording of Section 3 of the 1989 Act which defines parental responsibility as meaning,
“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
On the contrary, concerns were expressed by judges in particular that a fuller definition such as that proposed here might cause difficulties. This view is summed up in a letter of advice sent to me by the president of the Family Division, Sir Mark Potter, saying that the proposed amendment is,
“neither necessary nor helpful”.
The president goes on to say that,
“to introduce and define a new concept of the responsibilities of parenthood in the form of amended Section 8(4)(a) will create scope for argument and confusion in an area in which none of the many judges I have canvassed at all levels has ever found the existing definition to present any practical difficulties”.
The advice of the president could not be clearer, and I simply commend it to the House.
Finally, Amendment No. 40, tabled by the noble Baroness, Lady Walmsley, seeks to place on those acquiring parental responsibility through the making of residence orders under Section 8 of the Act the additional responsibility of having regard to the United Nations Convention on the Rights of the Child. Since the obligations under the UNCRC fall to the Government as the signatory state party, it is not appropriate for a duty to have regard to international obligations which bite on Governments rather than individual citizens to be imposed on a narrow group of private citizens who, through seeking to promote the welfare of children known to them, apply for residence orders under Section 8 of the Act. But of course we accept the responsibilities of the convention in so far as they apply to the Government.
The noble Baroness also asked me about the promotion of public awareness of the UNCRC, which is an important issue. I am glad to be able to tell her that our support for promoting this awareness is not in name only. My department is providing funding to UNICEF for its highly respected Rights Respecting Schools initiative which has been mentioned by a number of noble Lords. Funding of some £181,000 in the current financial year is being provided, and £178,000 in 2008-09. UNICEF has piloted the Rights Respecting Schools award in over 100 schools, and my department is seeking to scale up this activity in clusters of schools which can act as best practice models for others. We accept our responsibilities in this area and we are providing funding to see that public awareness is increased. I hope that that will have the desired effect.
My Lords, I am most grateful to the Minister for his explanation of what the Government are doing, but can he confirm whether they are considering incorporating the words as laid out in Amendment No. 11 in the guidance resulting from the Bill in terms of attitudes and behaviours that should be looked for in parents rather than it simply being a concept incorporated in other pieces of guidance that go out to different professionals? What concerned us as we were looking at the wording of this amendment was the need for a clear, consistent and relatively simple, positive message about what parents are expected to do. I can see clearly why the courts, which often deal with the problems that result from people not having done something, would like to find that they are not shackled by something which cannot be proven, such as attitudes and behaviours. The educational role of the guidance behind the Bill must be very important indeed for those who are likely to implement it.
My Lords, we are certainly seeking to ensure that the elements which form part of the definition of supportive parenting are promoted in guidance. I hope that gives the noble Baroness the assurance she is seeking, but what I cannot say is that that precise definition is one that we will seek to put in guidance.
My Lords, we shall certainly seek to ensure that the elements which form part of the definition of supportive parenting are reflected in the guidance. But I cannot give a commitment to promoting in that guidance precisely the words set out in the amendment.
My Lords, I am most grateful to the noble Lord, and I am glad that the Government accept the intention of the amendment. The trouble is that they have not given me any opening to take forward what I believe to be a very important issue, and listening to the noble Lord’s brief, I have the feeling that the Government have not really taken on board what the noble Baroness, Lady Finlay, referred to. I do not think that I would need to divide the House if the noble Lord could say that he is prepared to produce draft guidance or an indication of what the guidance will be. We could then decide whether to bring the issue back at Third Reading.
My Lords, I thank the noble Lord. In that case I will withdraw the amendment, but consider whether to bring it back at Third Reading.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 and 11 not moved.]
Clause 8 [Provision of accommodation and maintenance for children who are looked after by a local authority]:
12: Clause 8, page 6, line 25, at end insert—
“( ) In fulfilling their duty under this section, a local authority shall consider the welfare of the child to be paramount.”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 13, 14 and 37. I remember saying at the beginning of our consideration of the Bill that I looked forward to working for the benefit of children with colleagues of all parties because it is the welfare of children that is paramount and not political division. That has happened and it has been very gratifying. Significant changes have been made by the Government, which is also gratifying.
We have visited the issue of relative and friend carers before and I thank my noble friend the Minister for his correspondence, for his flow charts and diagrams, which are very clear, and for conversations. I am grateful to him and his team for trying to reach satisfactory conclusions, but I do not feel that we are quite there yet and I would like a little more detail.
We will be able to tackle the problems faced by family and friend carers only if the laws are changed or firm guidance is issued to local authorities and only if carers know what it all means and are drawn into the system. We need consistent criteria and adherence to specific rules to do the best for children. I would prefer the changes to be in law, but clear and firm guidance may do it. This Government have done much for children and families—probably more than any other—and this anomaly in relation to family and friend carers needs to be, and can be, sorted out.
During our consideration of the Bill, expectations for family and friend carers have been raised not only in the children plan but in the recent drug strategy, one of whose key strategy actions is to,
“support kin carers such as grandparents caring for the children of substance-misusing parents, by exploring extensions to the circumstances in which local authorities can make payments to carers of children classified as ‘in need’, backed up by improved information for carers and guidance for local authorities”.
Newspaper headlines followed this up with statements such as, “Grandparents to be paid for looking after children”. That is not quite true. Grandparents, after the initial excitement about all this, are now thinking that this may be much of the same and entirely down to local authorities deciding their status and that of their grandchildren. As we have said before, many of these carers have had bad experiences.
We heard in Committee examples of how local authorities are inconsistent in how they treat relative and friend carers, although there is good practice about. The noble and learned Baroness, Lady Butler-Sloss, spoke of a relative being persuaded not to become a foster carer and then not to become a special guardian. That was all to save money, of course, but how short sighted it was.
The outcomes for children placed in the care of relatives and friends are often better than the outcomes for those fostered by strangers. How much better would these outcomes be if those carers had more support and spent less time struggling to get financial and other help from local services? We all know that a child who is well looked after is much less likely to get into trouble with the law, get involved with drugs or get pregnant while a teenager. It is a false economy to deny payments to support a child while he or she is young. This false economy will of course rebound.
I spoke last week at two conferences, one on drugs and diversity and one on grandparents as carers. I heard from several grandparents emotional and emotive speeches about their cases. My files are full of case studies of relatives and friends who have been denied access to help and support. One grandparent whose daughter died from a drug overdose took charge of three children. She is still, after several years, trying to get decent accommodation. She said:
“Every day there is a mountain to climb. When I should be reading to my grandson I find myself writing some letter to try to get support for me and the kids”.
There are many examples of relatives and friends who have given up work and pension rights to be carers. Many now live in real poverty. One grandparent said that she had not been able to send her grandson to school because he had no suitable shoes. What era are we living in when a carer is destined for poverty?
I have been told that some local authorities define family and friend care as a private arrangement. You cannot have a private arrangement with someone who is dead, as many sons or daughters are when a grandparent takes over.
I asked the child health mapping programme whether children of relative and friend carers came up on its local surveys. Of course they do not, so who is in charge here? These carers are not trying to cheat the system to get money; they are trying to do a good caring job. Surely a prompt assessment of a case, with follow-up, would eliminate any malpractice and protect the child. This would be better than leaving people struggling with a system that they feel cheats them and stands in the way of their caring for their children as they would wish. An NHS slogan says, “Adding life to years and years to life”. That is not true in the case of many grandparent carers. I know that judgments have been made against local authorities in cases involving not paying until an assessment is made and in cases of other payments to grandparents and other carers. Why is there such inconsistency?
What is needed—this is the nub of my argument—is a system whereby when a child comes into the care of relatives or friends, the carers are immediately advised as to their options and counselled. This is not quite covered in correspondence with the Minister. The carer may become a local authority foster carer and be assessed or they may choose other routes such as special guardianship. Whatever the decision, they should be advised honestly on the financial and other support implications and not be bullied into the cheapest option. Becoming a local authority foster carer would clearly be more financially beneficial, but I accept that that might not suit everyone.
While those decisions are being made and assessed, it must be clearly understood and communicated that there will be financial support so that the children do not suffer. This requires instruction to local authorities, a named person to deal with the cases and clear information to the relatives and friends, taking into account that they may be grieving, stressed or disoriented. In the long term, this could save a great deal of money and would undoubtedly have better outcomes for children. We could also share and learn from the good practice that already exists. I beg to move.
My Lords, I speak to Amendment No. 37, the only amendment to which I have attached my name, as I believe fervently that we have to do something about this issue.
We discussed this matter in great detail in Committee. I do not wish to repeat those arguments or the arguments of the noble Baroness, Lady Massey, but I will say something about how you have to change practice at the coal face rather than merely hope that things will happen. We have all had a number of letters from grandparents with heartbreaking stories about their wish to care for their grandchildren and either losing the opportunity or being driven into poverty by the experience. I know that the Government have a strong policy towards kinship care, but the problem and the trick seem to be how we manage to protect the children by giving support to grandparents and how we make government policy happen on the ground.
Having spent most of my life trying to get organisational change, I know that, in a situation where you cannot get compliance by encouragement, you have to have a different framework. There are two key issues. First, although we would like local authorities to be principle driven, most are resource driven. If you look at any area of their work in social care at the present time, you will find that, every time we raise the issue of resources, the Government tell us that millions more have been poured into a particular issue, whereas on the ground difficult issues are being resource-driven. This is one of those issues.
Secondly, on the ground, people set their own expectations. If they have been working with a family, have difficulty with it and then have to receive the children into care, or if there has been a traumatic experience within a family, such as death—social workers, like the rest of us, find bereavement difficult to take—often social workers will think that a separate placement is more beneficial for the children. That is because we have not yet helped most practitioners to know how to use research findings in relation to their work. As the noble Baroness, Lady Massey, pointed out, research shows that children in kinship placements do better than those with even the most excellent foster parents found by the local authority.
On the resource-driven issue, we need to set up a framework that says that kinship care is a priority. The framework that the noble Baroness has outlined would ensure that these people were assessed as local authority foster parents and then given the opportunity to look at alternative options, because they will need guidance in finding their way through our confused benefits system. I am a great believer in devolving responsibility to local authorities, but you cannot leave this just with the local authority unless there is either something in the Bill—that is what I would like to see, which is why I support the amendment—or extremely positive regulation and guidance. If there is not, we will see no movement on this issue.
My Lords, I support Amendment No. 37. We are all grateful to the Minister for the full letter that he wrote to us, setting out responses to some of the questions that we raised, particularly so far as I was concerned. As the noble Baroness, Lady Howarth, said, the research shows how valuable kinship care can be in reining in the damage to challenging children, especially given that the children’s needs may be volatile, intermittent and flexible. There may well be a revolving-door situation for some of those families that are under strain. Foster care with, so to speak, professional strangers may not be the most appropriate way forward for those children. It can be appropriate but, where there is no history of abuse but rather a history of neglect, all the research suggests that kinship placements are much more satisfactory for the long-term health and well-being of the child.
The problem is that the grandparent needs a resource to be able to provide kinship care. Children do not come cheap. My noble friend’s letter suggested just how inappropriate central government financing structures are for such children. The grandparent may not know whether the child will be with them for two months, six months or six years. They need financial help; they will almost certainly need a lump sum immediately for beds and so on, as well as some form of income attached to the child for their maintenance.
Although in his letter my noble friend describes perfectly accurately—I would expect no less—the existing system, none of it gives me any comfort that the problem that I have identified will be addressed. It is true that the Social Fund can make grants through the community grant scheme to individuals, but very seldom, so far as I am aware, has that money gone to grandparents in these situations. The budget is cash- limited and the preference is for budgetary loans, repaid over time, in order to acquire white goods. It is not appropriate where a grant for grandparents is needed and I know from my own experience that such grants are very rare. So that does not help.
What about income? After six or eight weeks, the child benefit book may go to the grandparent, if that is not contested by the natural parents—and often in such circumstances it is contested by a parent who is reluctant to give up even the modest income that comes with that benefit book. But let us suppose that that goes across; it is still a fairly low-value benefit. It is going up to £20 and we are delighted about that, but it is still fairly low.
The two high-value benefits that are available are either the child tax credit, which is the tax credit payment for children, or the childcare tax credit, which is what allows a registered childminder to be paid while the parent goes out to work. Neither of those will be easily available to the grandparent. The child tax credit requires a new claim to be made by the grandparent, which will be at odds with the existing child tax payments to the natural parent, where the assumption is that they will run for 12 months. There will be serious delays and probable difficulties about the evidence of where the primary carer is.
What about the childcare tax credit? Given that we are talking about a grandparent, there is no provision, even if that grandparent is an experienced foster carer, for them to look after their grandchildren solely. The tax credit would have to go to the next-door neighbour, or a stranger, who would be paid to do what the grandparent would prefer to do herself but is not, by law, allowed to. The grandparent falls right down the middle of the benefit system. Although my noble friend describes the structure fairly, not one penny of the money available will necessarily help the grandparent to finance the child maintenance that is necessary if that child is not to have the additional struggles of being deprived of financial support, as well as the stress and strain that they may suffer from the effects of some form or other of parental neglect.
If, as apparently is the case, my noble friend cannot seek to produce any central government resource to help grandparents in this situation, the only other avenue is the local authority. I am not at all confident that local authorities would manage, incidentally. As the noble Baroness said, they, too, are resource-driven and the issue would be bandied to and fro between the two tiers. Is it central or local government’s responsibility? The result would be that the grandparent would still get nothing. I know, having accompanied a delegation with my noble friend Lord McKenzie on some of these issues, how many grandparents were forced to give up kinship care because they could not get any financial support. Those children were then placed permanently in the care system, so that the possibilities to rehabilitate the children with their natural parents in years to come were lost for ever. That is very sad.
I hope—indeed, I am confident—that my noble friend is aware that there is a real lacuna of financial support with appropriate flexibility for grandparents in this situation coming from central government. It has not been identified, responded to or addressed. In that absence, local authorities must act if central government will not. It is for that reason that I support my noble friend’s amendment.
My Lords, we have been strong supporters of what the noble Baroness, Lady Massey, has been seeking to achieve throughout consideration of the Bill. Like her, all other noble Lords who have spoken and the Government, we believe passionately in kinship care. The amendment would solve many of the problems that the Minister outlined in Committee and on recommitment. I get the feeling that the Government do not oppose it in principle but were dissatisfied with the legislative mechanism in the previous amendments, so I hope that these amendments will find a better reception. Our support has not wavered. I will have one more bash at this, although I know that the Minister has already said that he will take it away and look at it: if we want to ensure that local authorities look first to kinship care, as they should, then please can we make it a key performance indicator?
My Lords, in the past we have supported these amendments from the noble Baroness, Lady Massey, and we support them again on this occasion. They have been redrafted to meet some of the objections made by the Minister on previous occasions. We believe that they embody a good principle—that when a friend or relative takes on the responsibility of looking after the child and saves the local authority all the costs and work of trying to find foster parents and make other arrangements, it is only reasonable for them to receive help and support from the local authority. We urge the Minister to find some way of incorporating the amendments in the Bill.
My Lords, we are grateful to my noble friend Lady Massey for raising the issue of family and friends carers. My officials and I have had productive conversations with her and I hope that I can put on the record some points that meet most of her concerns.
Our overarching policy is to ensure a more consistent and transparent approach by every local authority to supporting relatives who care for children, whether the children have looked-after status or not. We intend to do that through a combination of the legislative changes that we are making in the Bill and the regulations and statutory guidance that we will be issuing to local authorities once the Bill is passed.
We want to ensure, first, that placement with family and friends is considered as an option for every looked-after child. That is why we are changing the Children Act 1989 by substituting new Section 22C for Section 23. Subsection (7)(a) of new Section 22C places local authorities under a duty to give preference to placements with related carers over any other placement option. Secondly, as set out in the Care Matters White Paper, we will issue statutory guidance to local authorities that will require them to publish a transparent and accessible policy for providing support to related carers, so that carers will know precisely what support they can expect, whether or not the child for whom they are caring has looked-after status.
Going to the heart of my noble friend’s concerns is the fact that, where a local authority provides a child with accommodation by making an arrangement for them to live with an individual, that child is deemed to be looked after by the local authority and the carer with whom the child is placed must be an approved local authority foster parent, whether or not they are related to the child or otherwise connected with them.
All carers with whom the child is placed by the local authority are therefore local authority foster parents regardless of prior relationship to the child and are therefore already covered by all existing legislation and regulation relating to foster parents, including—this is a key point—provisions of Section 49 of the Children Act 2004 relating to payments for foster parents. Local authorities’ policies on financial payment or other support must therefore not discriminate between related carers and others simply on the ground of prior relationship to the child. We will make this crystal clear in our guidance after the passage of the Bill.
Amendments Nos. 13 and 14 deal with emergency placements. We recognise that, when an emergency arises, the person best placed to care for a child is often someone who is already known to them, whether it is another family member or a neighbour. However, that person is unlikely to have prior approval as a local authority foster parent. This situation is provided for at the moment in Regulation 38 of the Fostering Services Regulations 2002, which enables a child to be placed with a relative after preliminary checks to ensure the child’s safety but pending full, formal approval as a foster carer.
We intend to use the new powers that we are taking through Clause 8 to regulate the approval of local authority foster carers to replicate the effect of Regulation 38 so that related carers can be granted temporary approval after basic preliminary checks have been carried out. The checks are likely to include, as now, a requirement to interview the carer, inspect the accommodation and obtain details of others living at the address. This will improve current safeguards for children placed in emergency. The effect of current Section 23(3) is that any person with whom a child is placed is a local authority foster parent, which means that there is no immediate legal consequence if the carer is not approved within six weeks. However, under new Section 22C, a carer is a local authority foster parent only if approved as such. As I have said, we will provide for a temporary approval status, which will be time-limited. If the temporary approval expires before full approval is granted, the placement cannot continue; otherwise, a local authority will be in breach of primary legislation.
The purpose of the proposed legal change is to ensure that local authorities prioritise the need to complete approvals in time and improve the safeguarding of these vulnerable children. It is also to ensure that family carers receive all the financial allowances and support to which they are entitled as foster carers with full approval. They can receive that financial allowance and support from the moment that they are given temporary approval.
We recognise that the current six-week limit on emergency placements under Regulation 38 causes some difficulties. This has been raised with us by the regulator during informal consultations on the regulatory changes that we need to make. Before making a final decision on any change to the emergency placement period, we need to undertake a formal consultation with all stakeholders. Setting the appropriate period is a matter of detail that is more suited for regulations than for primary legislation, but we need to strike a balance between the need to keep the process for approving relative carers as quick as possible and the need to ensure that the approvals process is rigorous and safeguards children. Within that overall balance, we are open-minded on whether the current six-week limit on emergency placements is appropriate or whether we should review it.
I hope that I have met most of the points that my noble friend set out. I reiterate that we give priority to the needs of related carers. For very many children, it is the most appropriate form of care. We want to see that proper support is available to carers in that position.
My Lords, I thank the Minister for his considered reply and others who supported the amendments. Issues around benefits and deficiencies in systems have again been highlighted with great expertise and potential loopholes have been exposed.
I shall read the Minister’s speech carefully. I was glad to hear him talk about crystal clarity in guidance and temporary approval status before a person can become a fully fledged foster carer. I would have liked to hear more on a named person being available to see through the morass of terrible problems with the system that people report. I have no intention of dividing the House on this issue, but I look forward to further responses from the Minister at a later stage—perhaps in other conversations with him and his team.
The Bill has still to go to another place. I am sure that, if all is not considered well, colleagues will lobby their Member of Parliament to exert influence on the Government and local authorities to sort out the system to their own satisfaction. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 and 14 not moved.]
15: Clause 8, page 7, line 28, after “education” insert “or training”
The noble Lord said: My Lords, I shall speak also to the other amendments in the group. These are minor amendments, intended to ensure technical clarity. Amendments Nos. 50 and 51 tidy up drafting. Amendments Nos. 42, 43, 47, 48, 52 and 63 are consequential amendments to the Children Act 1989, reflecting the effect of Clause 8 of this Bill.
I point to one amendment of significance, however. I have reflected further on points raised from all sides of the House about the requirement to ensure that determining the most appropriate placement for a looked-after child does not disrupt the child’s education, and on whether this requirement should, as noble Lords suggested in Grand Committee, also include training. I have concluded that we should be consistent with the policy underlying the Education and Skills Bill. Therefore, Amendment No. 15 inserts “or training” in the appropriate place.
The amendment will ensure that local authorities must take account of the effect of placement decisions on the activities of 16 to 18 year-olds who are not receiving formal education, but who benefit from on-the-job training, apprenticeships or similar work-based learning. This responds directly to concerns raised in the House, and I hope that it will be welcomed by noble Lords. I beg to move.
16: Clause 8, page 7, line 41, after “2004” insert “, save that subsection (5) of that section shall apply in all cases”
The noble Baroness said: I shall also speak to Amendment No. 35, which is about the same matter, and to Amendment No. 34.
Amendment No. 34 refers to the delegated responsibility of foster parents. Since our debate in Grand Committee, I have had briefings claiming that, in practice, all is not as the Government think. The fostering plans are not making it clear to foster parents on what they can and cannot decide. Simple decisions still have to go up the line. I have tabled the amendment again to give the Government another opportunity to tell us what they propose to do to ensure that practice follows what they think is happening on the ground.
Amendments Nos. 16 and 35 are about a duty to continue making fee payments to foster carers about whom allegations are being investigated until such time as the matter has been settled. Since we debated this matter in Committee, I have heard that the Government’s timescales for the resolution of allegations set out in their Working Together to Safeguard Children guidance are routinely being missed. The emotional strain from the considerable length of time it takes to resolve some of these investigations has huge impact on some foster carers, which, when combined with the withdrawal of their income, can force them out of the valuable work for which they were trained. The amendment would protect foster carers from financial hardship, put pressure on local authorities to speed up the investigations and enable more foster carers to stay in the service once their names have, one hopes, been cleared.
I have had a letter from a support group called FACT—Falsely Accused Carers and Teachers—which points out that a lot of the allegations are not made by the children and not while the child is with the carer. They are made by parents or other interested adults after the child has left care. This affects the unconnected children currently with that foster carer, since they have to be put elsewhere during the investigation. Many of these allegations are false. They come from a very chaotic population who use them to get back at society as a whole, yet it is the unfortunate accused individuals who suffer. While it is vital for the protection of children that all such allegations are properly investigated—I emphasise that—something must be done to speed things up to avoid penalising the innocent.
When doctors, police officers and teachers are accused of unprofessional behaviour, they are suspended on full pay. Foster carers, who are paid very little in the first place, are suspended without pay, which is tantamount to finding them guilty before any conclusion has been reached. In this country you are innocent until proved guilty. It is a principle of justice on which we pride ourselves. Let us ensure that foster carers are also treated as innocent until something other is proved. I beg to move.
My Lords, I was happy to add my name to Amendment No. 35 because, for us, it is about natural justice. Allegations are a constant fear for foster carers and vexatious allegations can be used as threats, although we agree with the noble Baroness, Lady Walmsley, about safety. To face a false allegation is bad enough, but then to lose money—in some cases over a number of months—is no way to treat these much-needed and valuable people.
I also support Amendment No. 34. We heard at the previous All-Party Group on Children last week how, for a child just to go on a school trip, foster carers have to get permission from the social worker, who then has to get permission from the line manager—each stage more removed from the child. Children in foster care are no different from other children and often ask about these things at the last minute. If they cannot go on the trip because the permission does not come in time, that further stigmatises the child.
My Lords, I wish to make only a single point in addition to those already made. The only possible argument against the amendment is that it might cost money. I wonder whether the Government have assessed the savings that would be had in finding more foster parents more quickly.
My Lords, I support the amendments—my name is attached to Amendment No. 34. We must make foster care more attractive if we are to live up to the aspirations of the Bill. Can the Minister give us an update on the numbers of foster carers? I understand that there is a shortage of 10,000 in the UK, which means that many children are placed in inappropriate placements. Foster carers often say to me, “I said I was ready to take a child with low needs. I hadn’t had much experience of foster care or training, and I was given a child I later discovered had a dreadful history of neglect and a high level of need”. What else can a social worker do when there is nowhere else to put the child? If we wish the best for these children, we must make foster care more attractive. The amendments would effectively do that, so I hope that the Minister can give them a sympathetic response.
My Lords, the proposal is in the interests of children. There is nothing like money to speed things up, and some of these hearings take an extraordinary length of time, during which we focus on the adults—the foster parents and those who have made allegations. The children may have made allegations but we have to remember that they are children at risk. The allegations may be true or not but, just as in other situations, it is important that the children are not seen as objects in the inquiry but that the process is speedy for their sake and everyone else’s. That is another reason for supporting the amendment.
My Lords, I also support the amendments. It is clear that we should not be treating foster parents differently from other groups suspended for such allegations. I also support the other amendment on the delegation of responsibility. We are increasingly wishing for and training our foster parents to be professional, and we should treat them as such.
My Lords, although the number of foster carers affected is small, I sympathise with the view expressed by the noble Baroness, Lady Walmsley, and other noble Lords, that no foster carer should be penalised until the appropriate authority is satisfied that an allegation is well founded. Most fostering providers who continue to pay a fee during investigations also abide by this principle.
For those foster carers whose fees are stopped, I recognise that that loss of income can add to an already very stressful situation and may contribute to a decision to leave fostering. We are happy to take this issue away to consider further what might be done, and we shall indicate our thinking as the Bill goes through another place. I am sorry that we cannot do it more rapidly than that but I hope that that commitment will give some satisfaction to your Lordships.
The noble Baroness, Lady Walmsley, mentioned the time taken to resolve investigations and the independent support available to foster carers. The guidance Working Together to Safeguard Children, which was published by the Government in 2006,
“considers that it is reasonable to expect that 80 per cent of cases should be resolved within one month, 90 per cent within three months and all but the most exceptional cases … within 12 months”.
However, evidence suggests that these timescales are not always met. The national minimum standards for fostering providers require them to make independent support available to their foster carers, but it appears that that requirement is not being met in all cases. I recognise that lengthy investigations without adequate independent support can add to the stress experienced by foster carers subject to an allegation, and I undertake also to consider this matter further to see what changes we might make to facilitate further improvements.
On the delegation of responsibility, which is raised in the second amendment in the group, as I said when we debated the amendment previously, I recognise that a foster carer who may be with a foster child 24 hours a day is often in the best position to make decisions about that child. However, bearing in mind the complex circumstances of many foster children, it would be inappropriate for the Government to dictate when decisions can and cannot be delegated, and it is right that that is decided at a local level between the fostering provider and the foster carer in the light of all the circumstances of a particular child’s case. Existing legislation and statutory guidance is already clear that local authorities should clarify with foster carers the extent to which responsibility is delegated to the carer.
In the previous debate on this issue, the noble Baroness, Lady Walmsley, acknowledged the case for decisions about delegation of responsibility to be made locally in the light of the particular circumstances of the child. I accept the point which she also made, however, that some foster carers remain confused about the decisions they have the authority to take. We have considered this matter carefully. The fostering services regulations require there to be a placement agreement before the provider places the child with the foster carer, but once the agreement is in place there is no legislative requirement for it to be reviewed. I recognise that if the content of the placement agreement is not reviewed, it may become out of date or forgotten, particularly where a placement is long term.
I therefore suggest that the concerns underlying the noble Baroness’s amendment could be addressed by an amendment to the fostering services regulations to require the placement agreement to be reviewed annually, or sooner if there is a substantive change in the circumstances of the placement. This would ensure that there is regular discussion between the provider and the foster carer about the delegation of decisions, allowing any concerns that the foster carer may have to be addressed. I undertake that we will consider this as part of our planned review of the fostering services regulations, which will be completed next year.
On the basis of the commitments I have given, I hope that the noble Baronesses will withdraw the amendment.
My Lords, I am most grateful to the Minister and other noble Lords throughout the House who expressed support for this group of amendments. I am particularly grateful for the Minister’s concessions. We have clearly been successful in convincing him that more needs to be done as regards delegated responsibility. I was most interested in his suggestion that an annual review might give foster carers the opportunity to clear up any misunderstandings, confusion or irrationalities about the original placement agreement.
I am also most grateful for the Minister’s commitment to have payments to foster carers raised in another place and to look for a solution that will ensure that the worst local authorities come up to the standards of the best. I acknowledge that the best continue to pay fees while allegations are being investigated and make all haste to get them cleared up as soon as possible. It is a pity that this matter cannot be settled in your Lordships' House, but I and the noble Baroness, Lady Morris of Bolton, to whom I am most grateful for her support on the amendment, will alert our colleagues in another place to it. We shall look out for what the Minister in another place proposes to address these matters. Let us hope that when the Bill comes back to us, they will have been settled satisfactorily. In the light of my gratitude for the solutions that the Minister proposed to meet these concerns, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
17: Clause 8, page 8, line 22, at end insert—
“(22FA) Accommodation with former foster parents
The appropriate national authority may, by regulations, make provision about the arrangements for relevant children and former relevant children to live with former foster parents.”
The noble Baroness said: My Lords, this amendment concerns a different matter altogether. Amendments Nos. 17 and 30 constitute two different ways of doing the same thing; that is, enabling young people leaving care to stay with their former foster parents on a stable, properly funded and regulated basis without being thrown into the hurly burly of adult services. Since I laid these amendments, the Fostering Network organisation that briefed me has been in communication with the Bill team. I am most grateful to it for the time it has taken to allay some of our concerns on this matter.
An e-mail from a member of the Bill team lays out why my amendments may not be necessary. I apologise if I am pinching the Minister’s speech. The e-mail states:
“Following a further conversation with our legal advisors, I am writing to confirm that, as we discussed, there is no need for additional powers in the Children and Young Persons Bill to regulate this provision. Section 42 of the Care Standards Act 2000 (as amended by the Health and Social Care Bill), enables the Government to make regulations to provide for registration of those making arrangements for the placing of former relevant children with ‘foster carers’ If the Government decides, following the pilots enabling 18 to 21 year olds to stay with their foster carers, that regulation would be appropriate no further primary legislation would be needed to enable this. Were such arrangements to be regulated, Her Majesty’s Chief Inspector for Education, Children’s Services and Skills would be the regulatory authority and inspect such arrangements. In respect of the pilots, we sent local authorities the invitation to tender for the Staying Put: 18+ Family Placement pilots in February with a view to running pilots in June 2008”.
I am very pleased about that confirmation and wish the pilot schemes a very fair wind. However, I chose not to withdraw the amendments because I wanted to give myself an opportunity to ask the Minister three questions about this issue.
First, will he confirm that regulation via the Care Standards Act and the Health and Social Care Bill will enable support for placements for people between 18 and 21 to be dealt with by leaving care teams, and that foster carers will then remain within the fostering services rather than being transferred to adult services? Secondly, will the Government report annually on the number of young people remaining with their foster carers between 18 and 21 so that they can assess the increase in the number who choose to do that? Thirdly, given existing practice on this matter in some local authorities and in Northern Ireland, will they assess and report every year on whether the staying put pilots can be rolled out across the country at that point rather than waiting the full three years of the pilots before considering a roll-out? Some authorities are implementing many of these measures already and it would be a pity to have to wait three years if that is not considered necessary. I am most grateful to the Bill team for satisfying me on the main area of concern of these amendments. I hope that the Minister can clarify the small issues that remain. I beg to move.
My Lords, this rosy picture is not necessarily experienced on the ground. Work done on the transition of disabled children from children’s to adult services shows that it can be very traumatic and underlines how important it is that they have stable continuing family circumstances. Very often disabled children do not have the capacity to understand what is happening to them when they are moved from one health service section to another and to have to move from one home to another in addition can be disastrous. The relevant process needs to be much faster.
My Lords, the noble Baroness, Lady Walmsley, read out word for word my proposed response to her amendment. Therefore, she leaves me in a very difficult position because I have nothing to add to her remarks. However, she asked me three specific questions on the implementation of the staying put 18-plus family placement pilots. I was about to say that I was not in a position to give her an answer but I see that I am. The efficiency of my officials means that I can answer all three questions.
Local authorities could run this service through leaving care teams. We shall consider reporting annually on the number of post-18s who stay with foster carers. We will share the findings for each year of the staying put pilots in an annual stocktake, which will give other authorities that wish to follow best practice in this area the opportunity to do so.
18: After Clause 8, insert the following new Clause—
“General duty of local authority to secure sufficient accommodation
After section 22F of the 1989 Act (which is inserted by section 8) insert—“22G General duty of local authority to secure sufficient accommodation for looked after children
(1) It is the general duty of a local authority to take steps that secure, so far as reasonably practicable, the outcome in subsection (2).
(2) The outcome is that the local authority are able to provide the children mentioned in subsection (3) with accommodation that—
(a) is within the authority’s area; and(b) meets the needs of those children.(3) The children referred to in subsection (2) are those—
(a) that the local authority looks after,(b) in respect of whom the authority are unable to make arrangements under section 22C(2), and(c) whose circumstances are such that it would be consistent with their welfare for them to be provided with accommodation that is in the authority’s area.(4) In taking steps to secure the outcome in subsection (2), the local authority must have regard to the benefit of having—
(a) a number of accommodation providers in their area that is, in their opinion, sufficient to secure that outcome; and(b) a range of accommodation in their area capable of meeting different needs that is, in their opinion, sufficient to secure that outcome.(5) In this section “accommodation providers” means—
local authority foster parents; and
children’s homes in respect of which a person is registered under Part 2 of the Care Standards Act 2000.””
The noble Lord said: My Lords, I have, throughout the course of our debates, stated our ambition to enhance the range, quality and choice of suitable placements for looked-after children, and I have outlined the steps that we are taking to improve local authority commissioning in order to do this. This goes hand in hand with our commitment to ensuring that more children are provided with accommodation in their local area and are only moved to a different area to meet their particular needs.
As the Bill was originally drafted, Clause 8, by imposing a new duty on local authorities not to place out of area, with only a limited discretion to depart from it, would have had the effect of requiring local authorities to ensure that they had sufficient accommodation in their area to meet the needs of the children whom they look after. This would have delivered our policy intention, and further provision would have been unnecessary.
However, in the light of recent government amendments to the requirements that local authorities must satisfy when making placement decisions, and the comments of noble Lords, including the noble Earl, Lord Listowel, who has shown his customary commitment to this cause, we now consider it necessary to introduce an explicit provision to require local authorities to plan and commission services properly.
Amendment No. 18 therefore places a new general duty on the local authority that will require it to take steps to ensure that, so far as is reasonably practicable, there is sufficient accommodation within its area to meet the needs of the children that it looks after. In meeting this duty, authorities will not have to take account of those children who can be placed with their parents or those for whom it would not be consistent with their welfare to be placed in area.
By requiring local authorities to consider the benefits of having a number of accommodation providers, the amendment makes it clear that they cannot fulfil this duty by presuming that they can provide the sufficient level of accommodation entirely by themselves. In addition, it highlights the need to have a range of accommodation that is sufficient to meet the different needs of children, who as we all know have diverse needs.
This amendment has been tabled specifically to meet the concerns that have been raised in earlier debates, and I hope that it will be agreeable to the House. I beg to move.
19: After Clause 8, line 13, at end insert—
“(aa) that the local authority supports in accordance with section 23B(8) (additional functions of the responsible authority in respect of relevant children),”
The noble Earl said: My Lords, briefly, I strongly welcome the amendment that the Minister has moved, and I thank him for his kind words. Many charities have called for this, including the Fostering Network, and I am delighted that the Government have brought forward the amendment.
I will speak to my two amendments, Amendments Nos. 19 and 20, which touch somewhat on the debate that we have just had on transition from care. Amendment No. 19 would extend the duty to 16 and 17 year-olds who are leaving care. Those young people should normally be staying in care until the age of 18, but I understand that most still do not do so. Consequently, there is an urgent need to ensure that there is an adequate local supply of supported accommodation. Sadly, these children can still on occasion be placed in a red light district or bed-and-breakfast accommodation.
Will the Minister consider extending the duty to former relevant children; that is young care leavers of 18 and over? They, too, often face hurdles to obtaining appropriate accommodation. Will the Minister also consider the needs of young adult care leavers in full-time education who need accommodation in the university holidays? If it would be helpful, I would gladly table an amendment on Third Reading to allow the Minister to describe his plans for improving access to suitable accommodation for young adult care leavers.
Amendment No. 20 obliges local authorities to produce a plan for how they intend to provide for relevant children. It would be a mechanism for encouraging local authorities to think of the needs of care leavers strategically; it would be a lever to encourage improvement. I look forward to the Minister’s reply. I beg to move.
My Lords, I give a brief but warm welcome to government Amendment No. 18 which, in my view, goes to the heart of the matter. In the new clause, the local authorities are under a general duty to provide as far as reasonably practicable the necessary accommodation for looked-after children in their own area and meeting the children’s needs. By this means, we will establish a more stable environment for those children, and I hope that we will reduce the number of cases in which children have been frequently moved. I recognise that the clause is drafted in such a way as to make possible accommodation for a looked-after child outside the local authority’s area where that is right for the welfare of the child, and that is correct. The new clause reflects some of the discussion in Committee, which I was extremely interested in. I warmly welcome the Government’s positive response.
My Lords, I simply want to ask the Minister a question. Does he consider it appropriate that an older young person in specialist disability accommodation, during holidays, having no family to return to, should be returned to an old people’s home where there is no stimulation, when that young person could stay in the specialist accommodation but the cost is considerably higher? Therefore, the local authority may place the child nearer to what may have been the geographical borough, but it is certainly not nearer to what the child considers to be home. We need some more clarity about some of the emotional impact of what people perceive as home and about some of the answers which, again, are resource-driven.
My Lords, I have a modest concern about the amendment. It is very often the case that children who are in care are also children who are in trouble. They are often in trouble because of emotional insecurity and lack of social skills, and they have found their only fulfilment in joining a gang. If you put them back into the same area, the first thing that will happen is that the gang is going to get at them, and they will be back in the gang, and within minutes they will be in trouble or in prison. Surely, there must be quite a lot of cases where it would be better for the child to have secure and appropriate accommodation in an area that is far away from the home area where all the trouble started.
My Lords, from these Benches, we welcome the amendments, and we are particularly pleased that the Government have listened to the arguments that noble Lords have rehearsed on two previous occasions and have come forward with the amendment on making diversity of placements more easily available. We also support the amendments tabled by the noble Earl, Lord Listowel, which spell out these duties even more explicitly than they are spelt out in the government amendment. In particular, we support Amendment No. 20. Finding foster carers is not easy, and many local authorities struggle to find suitable placements. The requirement to make these within the area will be difficult to meet and will require long-term planning and time and resources to build up what will be in effect a bank of possible placements.
I have three questions for the Minister, which stem from some of the reservations of local authorities; the Local Government Association has asked us to raise these questions with the Minister. First, in relation to timing, will the Government work with the LGA and other sector representatives to determine an appropriate lead-in time for the amendment? Secondly, on funding, resources will be necessary, and it will cost local authorities money or resources to develop new placements within the area. Will the Government agree to work with the LGA to develop an impact assessment of what resources will be necessary? Thirdly, in relation to enforcement, the legislation, guidance and regulations implementing the amendment will need to be developed and will need to have a degree of flexibility so that local authorities retain the freedom to make placements outside the area where the needs of the child are best met by such a placement. I think that we all agree that there are some occasions when that is so. Will the Government work with the LGA and other sector representatives to help to develop the flexibility in the regulations?
My Lords, we very much welcome Amendment No. 18 and appreciate that the Minister has listened yet again to the concerns of noble Lords, especially the noble Earl, Lord Listowel, in the debates on accommodation. We especially welcome the fact that this is an explicit duty. We also appreciate that safeguards take into account those living with their parents, and those for whom it would be inconsistent with their welfare to be placed in the area—the very children whom the noble Lord, Lord Northbourne, spoke of who may be involved in gangs, have been horribly sexually abused, or have been trafficked.
It is good that there has been recognition of the importance of diversity of provision. Different children have different needs, and the move to ensure that local authorities must provide a range of accommodation for a range of needs is welcome. However, how far does that extend? Does it require local authorities to provide for every possible need? Can the Minister give a clear guarantee that children with acute and complex needs will be able to receive the most appropriate care placement, including an out-of-area specialist setting where necessary? Very much on the lines of the noble Baroness, Lady Sharp of Guildford, I say that local authorities are concerned that that will be very costly. Does it come with any extra money?
My Lords, I am grateful to noble Lords for their general welcome for this new duty on local authorities to secure sufficient accommodation. The noble Baronesses, Lady Sharp and Lady Morris, made points about consultation with local authorities on the scope of the duty and how we would expect it to be implemented. I undertake that we will continue to work with local authorities to support improvements in commissioning across children’s services, and to engage them in determining the commencement and implementation arrangements of the provision as part of the implementation of Care Matters. That consultation will include the matters set out by both noble Baronesses. The statutory guidance on the new provision will be developed in consultation with local authorities and other stakeholders, and subject to a full impact assessment, a point raised by the noble Baroness, Lady Sharp.
The noble Earl, Lord Listowel, was concerned about 16 and 17 year-olds who had left care but were entitled to leaving-care services. We recognise that supporting that group of vulnerable young people is crucial, which is why we brought in the duty to provide them with accommodation through the Children (Leaving Care) Act 2000. From a legal point of view, it is problematic to include that group in the current general duty, so I cannot propose to bring them into the scope of my proposal. However, I recognise that he raises an important point about that group, and I will take the matter away to consider further in the expectation that we will be able to address it through statutory guidance.
With regard to Amendment No. 20, a range of obligations on health and local authorities already relate to planning and publishing information about their plans, including a duty to undertake joint strategic needs assessments and a requirement to produce a children and young people’s plan. We expect information about the local authority’s assessment of local needs for accommodation, and its plans for securing sufficient accommodation to meet need, to form part of the wider needs assessment and the statutory plan. I hope that those existing means of consultation and the existing plans that have to be produced meet the concerns of the noble Earl.
My Lords, I thank the Minister for his helpful and encouraging response, and beg leave to withdraw the amendment.
Amendment No. 19, as an amendment to Amendment No. 18, by leave, withdrawn.
[Amendment No. 20, as an amendment to Amendment No. 18, not moved.]
On Question, Amendment No. 18 agreed to.
21: After Clause 8, insert the following new Clause—
“Recording the child’s wishes and feelings
(1) The 1989 Act is amended as follows.
(2) In section 17 (provision of sevices to children) after subsection (4A)(a) insert —
“(aa) record in writing the child’s wishes and feelings; or(ab) record in writing why it has not been reasonably practicable to ascertain the child’s wishes and feelings; and”.(3) In section 20 (provision of accommodation for children: general) after subsection (6)(b) insert—
“(c) record in writing the child’s wishes and feelings; or(d) record in writing why it has not been reasonably practicable to ascertain the child’s wishes and feelings.”.(4) In section 22 (general duty of local authority in relation to children looked after by them) after subsection (4) insert—
“(4A) Following an ascertainment under subsection (4)(a) the local authority shall record in writing the child’s wishes and feelings or why it has not been reasonably practicable to ascertain the child’s wishes and feelings.”
(5) In section 47 (provision of services to children) after subsection (5a)(a) insert—
“(aa) record in writing the child’s wishes and feelings; or(ab) record in writing why it has not been reasonably practicable to ascertain the child’s wishes and feelings; and”.”
The noble Baroness said: My Lords, noble Lords will recognise that I moved this amendment in Committee. I bring it back following further concerns and briefings from the Children’s Rights Alliance, Participation Works and a range of children’s organisations. The amendment introduces a mandatory duty on local authorities to record the child's wishes and feelings—or, where that has not been possible, the reasons for that—in relation to the provision of services for children, including accommodation and all decisions made by the local authority with respect to looked-after children.
In Committee the Minister suggested that the amendment was unnecessary, as the integrated children's system includes opportunities for local authority social workers to record the views of children throughout their care experience. However, there is no statutory duty on the local authority to ensure that children's wishes and feelings are recorded. There is surely a clear need for enforcing that aspect of practice, which would correlate with the requirements under Article 12 of the Convention on the Rights of the Child that grant all children the right to express their views and for them to be given due weight in all matters concerning them.
Research on serious case reviews undertaken by the Open University and the University of East Anglia, and published recently by the DCSF, found evidence of poor practice in the production of chronologies of the child's life history and contact with agencies. It also found that too often social workers focus not on the child, but on their relationship with adults. One extract from a serious case overview illustrates the depth of the problem:
“There is no information that the children were spoken with. Sibling 1 had just turned 16 and Sibling 2 was 14 years old and both were fully able to discuss issues of physical chastisement within the family. The accounts from the older children would have been able to inform a decision about speaking with the younger siblings who, at age 5 years and 4 years, would also have been able to express if they were being hit around the head in answer to direct questions”.
It may be no surprise that the children themselves do not feel that their views are adequately taken into account. An online survey of children conducted by the DCSF in autumn 2006 found that nearly a quarter of respondents who had a social worker—23 per cent, 604 children—said that they felt that the social workers “never” took their views into account. Inspectors of foster care services have also noted that children do not always feel confident that their views are listened to; they had concerns about the structure of meetings and found aspects of the documentation and recordings unhelpful. A major 2002 consultation with children in care found that approximately one-third felt that they had not been listened to.
In a letter to directors of children's services and chairs of local safeguarding children boards written in February, the Minister, Kevin Brennan MP, himself admitted the importance of obtaining and taking into account the wishes and feelings of children. It is clear that the current system does not sufficiently address that problem. Moreover, the impact of the integrated children's system remains unknown. An evaluation of the ICS was commissioned as early as 2004. A first draft was received by the DCSF in 2006 but has not yet been published. The latest available public information from DCSF officials suggests that many local authorities are falling behind in administering the system.
The more effective system of consultation that this amendment would introduce would tackle a real problem in the care of looked-after children and particularly help children under the age of 16, who government statistics show are much less likely to make their wishes known spontaneously. It would also help disabled children, who all too often have little family contact.
I hope that the noble Lord will be able on this occasion to give a more encouraging reply to these real concerns, which continue to be raised. I beg to move.
My Lords, I support this very important amendment. It seems to me that the child must be at the centre of our considerations all the time in working out what solutions, what programmes and what approaches will be most appropriate. That is absolutely indispensable in being certain that we are hearing the voice of the child. As I think I put it in Grand Committee, we must try to avoid a situation in which, even inadvertently, the child becomes an object that is being discussed. The child is a human being with all its personality, its potential and, yes, its rights—I use the modern language. Even more creatively than that, I think we could use the word “spiritual”. In that sense, the voice of the child is crucial. The amendment and the exemplary way in which it has been moved spell out the importance of this matter and reassurance on it by my noble friend is vital.
My Lords, I, too, have put my name to the amendment. I continue to support it as I did in Grand Committee. I wish to draw the attention of noble Lords to one example of where there is already a duty to ascertain the child’s wishes and feelings. It must surely be on the record that that is when a review is taking place—although, in fact, that is not happening.
I refer to the report from the Children’s Commissioner, to which I referred in an earlier amendment, about the way that the London Borough of Hillingdon deals with unaccompanied asylum-seeking children. On page 7 of that report the commissioner pointed out:
“Interviews with independent reviewing officers and examination of the files showed that necessary documents were not always available at the child’s review when significant decisions were being made about the care of the child”.
That included the child’s wishes and feelings. One of the Children’s Commissioner’s recommendations, as a result of his findings, is that,
“a full record of any discussion is placed on the child’s file. A summary decision letter is not adequate”.
That means there should be a full record of the child’s views from the IRO’s interviews with the child. This should take place at the point where the child’s placement arrangements are being reviewed. That is an important staging post in the child’s history of care. These are the most vulnerable children.
I do not have anything against the London Borough of Hillingdon. I very much accept that it is doing its very best, but it has an enormous burden, particularly with respect to unaccompanied asylum-seeking children. That issue is not being properly funded by the Government, so the council has my greatest sympathy. I point this example out to noble Lords because it is one where the wishes and feelings of the most vulnerable children, at a very important stage of the care process, are not being recorded and taken into account at the review. If it is not happening at those times, it is clearly not happening at somewhat less important stages for less vulnerable children, when it should be happening. It is not just a question of best practice, it is the only acceptable practice, whereby social workers should take account of children’s wishes and feelings at every stage, and make sure that those wishes and feelings are recorded, so that they can be taken into account by other people who have some part in the decision making about the child’s placement.
My Lords, this amendment seeks to place in the Bill an explicit requirement that whenever the local authority has a duty to ascertain the wishes and feelings of the child under Part 3 the Children Act 1989 a written record must be made of those wishes and feelings.
There is no disagreement of principle here at all, but it is the Government’s view that such a requirement is implicit in the statutory duty which already exists to ascertain the child’s wishes and feelings when taking decisions that affect the child. The Framework for the Assessment of Children in Need and their Families in 2000 and related government circulars about the implementation of the Integrated Children’s System were issued under Section 7 of the Local Authority Social Services Act 1970. Local authorities must act under the provisions of Section 7. The legal basis is already clear. Recording all important information on which decisions are based, including the child’s views, is central to good professional practice, as set out by the Integrated Children’s System.
As I said in Grand Committee, where a child is looked after, their social worker must record on the ICS form, which I read out in Grand Committee, the views of the child about their care plan; and if it has not been possible to ascertain those views, the social worker would need to record the reason for this. The social worker must also record—I stress “record”, because it is a requirement of the ICS—whether or not it is possible to act on the child’s views. Each child’s care plan is a living record and the child must be closely involved in planning their own care.
However, we intend to do more. Our Care Matters White Paper outlined our intention to bring together into one set of regulations, with accompanying statutory guidance, all requirements for care planning and reviewing of cases. This will set out in one coherent set of care planning and reviewing regulations all requirements for practitioners and managers in relation to these core processes. The regulations will be linked to the full implementation of the ICS.
The new regulations will incorporate most of the requirements in the current regulations, but will also provide the opportunity to address a number of additional issues set out in the Care Matters White Paper, increase the level of scrutiny and oversight of the care plan and improve the participation of children in planning for their own care. These regulations will provide an opportunity to impose a legal requirement that social workers record the views of children about their care. We believe that this detail is more appropriate for secondary legislation but we intend to set out the new requirements in the regulations that follow the Care Matters White Paper.
As the House is aware, Clause 9 strengthens the functions of independent reviewing officers, who are responsible for scrutinising each looked-after child’s care plan. Clause 9 amends the Children Act 1989 to impose a new duty on the IRO to ensure that any ascertained wishes and feelings of the child are given due consideration by the local authority. We envisage that implementing this requirement will involve the IRO meeting the child personally before the review meeting to discuss the care plan. This requirement will also involve scrutiny of the authority’s performance of its care planning duties. Any authority would be unable to discharge these duties competently unless it had a robust approach that ensured that its officers ascertained and recorded children’s views about the care plan.
To summarise, the current framework of legislation and statutory guidance already requires the local authority to involve children and to record children’s views, or where necessary, record why it has not been possible to establish these. However, future regulatory change will enhance this framework and reinforce the responsibility of the child’s social worker for establishing and recording the child’s views. I hope that, on that basis, the noble Baroness will not feel it necessary to press the amendment.
My Lords, of course I am pleased to hear that more thought is being given to this issue—albeit not in the Bill. However, I find it strange that there has been no explanation as regards the evaluation of the system, which was undertaken as early as 2004. A draft was received by the department in 2006 and still we have had no indication as to whether the system was regarded as failing. Certainly all the evidence we have had is that it has not been complied with satisfactorily by local authorities—not all local authorities but quite a number of them. Presumably the evaluation should have been published by now and it would show us exactly where the failings are.
My Lords, I shall be quite frank with the House. I am not familiar with the evaluation to which the noble Baroness refers, although I shall certainly be happy to look at that issue further and come back to her. However, as I said, the statutory requirements on local authorities in this matter are very clear.
My Lords, before the Minister sits down, perhaps I may make a further inquiry on this matter. My understanding is that under Section 1 of the Children Act 1989 the court has an obligation— whether it is making a private law order under Section 8, a care order under Section 31 or a supervision order—to consult the child on their wishes in so far as they are ascertainable, bearing in mind the child’s age and situation. That is a clear obligation of the court, and failure to do so would be the subject of appeal. However, so far as concerns the obligation of a local authority under Section 17, I accept, and indeed applaud, the fact that great attention has been given to an administrative directive. As I understand it, that could never be the subject of an appeal because it is not a justiciable issue. Nor, as I understand it—I shall be corrected if I am wrong—could it be the subject of an application for judicial review. That is the difference between what is proposed in the amendment—putting something under the sovereign authority of statute law—and what is undoubtedly intended to be an authoritative direction of an administrative nature. Does the Minister agree that my analysis is broadly correct?
My Lords, the noble Lord is pressing beyond my knowledge for the circumstances in which applications for judicial review can be sought. I cannot answer his specific point about whether it is possible to make an application for judicial review in respect of an alleged failure to observe circulars issued under Section 7 of the Local Authority Social Services Act 1970.
My Lords, I am informed that circulars issued under that section are binding on local authorities. They must act under them, and therefore we believe that the legal basis is strong. However, I am afraid that I cannot answer his specific point about the circumstances in which a judicial review can be sought.
My Lords, are we really saying that there is a statutory duty to do everything that I ask for in my amendment and that therefore those who are very concerned about this matter and who certainly convinced me that it was necessary to bring back the amendment have no case at all?
My Lords, I do not believe that there is a case in this respect because there is a statutory basis. However, what the amendment seeks is implicit in the statutory duty because the requirements on local authorities to record the wishes and feelings of the child are issued under Section 7 of the Local Authority Social Services Act 1970 and local authorities must act under that section. Therefore, our view is that there is an implicit statutory duty, which we believe meets the needs of the case.
My Lords, I cannot say that I am 100 per cent satisfied with what I have heard and, under those circumstances, I cannot promise that I will not want to return to the matter. However, in the mean time, perhaps there will be opportunities to have discussions to clear up some of the matters—if it is possible to clear them up.
22: Clause 9, page 9, line 11, at end insert—
“(1A) In carrying out his functions in relation to subsection (1)(c), the independent reviewing officer must—
(a) give information to the child about independent advocacy;(b) where the need for independent advocacy is identified, require the local authority to make arrangements for the provision of independent advocacy for the child.(1B) For the purposes of this section—
“advocacy” means the provision of independent and confidential information, advice, representation and support to a child;
“independent” means where the person appointed is not connected with the local authority by virtue of being—
(a) a member of the local authority or any of their committees or sub-committees, whether elected or co-opted;(b) an officer of the local authority employed by the children’s services department of that authority; or(c) a spouse or civil partner of any such person.””
The noble Baroness said: My Lords, I shall speak also to Amendment No. 23. The purpose of Amendment No. 22 is to require independent reviewing officers to provide information to children about independent advocacy and, where a need is identified, for the service to require the local authority to provide it. The purpose of Amendment No. 23 is to ensure that local authorities conduct regular assessments to verify the provision of sufficient independent advocacy services.
We tabled both these amendments because we do not believe that children and young people should have access to independent advocacy only at the point at which something has gone wrong. Better outcomes and potentially long-term cost savings can be achieved if independent advocates are involved, where necessary, to support children and to help them to be involved throughout the decision-making process.
Perhaps I may say more about Amendment No. 22 first. Under current guidance, the IRO is required to inform the child of his right to make a complaint and, in such circumstances, his right to an advocate. I believe that this is too late. It puts the onus on the child to take action after a decision is made about which he is unhappy, rather than at the time, when he may be able to influence the direction of that decision and thereby perhaps end up with an outcome with which he is much happier. Therefore, we believe that the IRO should inform the child about independent advocacy—what it means, how it can help him and how it is different from the social worker and IRO roles—before each review.
Following this discussion, and where the child is clear that he wants an advocate or the IRO feels that the child would benefit from one as his views do not correspond with the care plan, the local authority should be required to provide advocacy services to that child. It should be emphasised that not all children will need or want advocacy, but the point that I am trying to make is that they should be given the opportunity to make an informed decision about it rather than simply not have access to it.
Amendments Nos. 22 and 23 were both tabled in Committee and I am returning to them. In Grand Committee, the noble Lord, Lord Adonis, expressed the Government’s view that these proposals were unnecessary in the light of the modifications made in the Bill to the role of the IRO. He said:
“The role of the IRO is central to ensuring that the voice of the child is heard. Therefore, Clause 11 introduces a specific duty on the IRO to ensure that the wishes and feelings of the child are given due consideration in care planning”.
He went on to say:
“The Bill extends the responsibilities of IROs to monitor the performance of the local authority’s functions in relation to a child’s case, ensuring that they effectively oversee the care planning process so that it is fair and reasonable and gives proper weight to the child’s wishes and feelings. The IRO will support children’s active engagement with the care planning process, ensuring that there is greater scrutiny of the care plan for each child in care and making sure that children and young people are informed about their rights if they consider that they have been treated unfairly”.—[Official Report, 17/1/08; col. GC 581.]
Although I welcome that and the fact that the Government are strengthening the role of the IRO, I do not believe that that enhanced role meets the need for more children to access professional independent advocacy. I say that for three reasons. First, the purpose of independent advocacy is fundamentally different from that of the IRO. The expression of the child’s views in the decision-making process by an IRO who is responsible for facilitating its outcomes is quite distinct from the representation of those views by an advocate who is independent of the process. There is a strong argument that, under human rights law, natural justice requires the child to be independently represented in decision-making about his private and family life. As Mr. Justice Munby said:
that is, of the UNCRC—
“imposes procedural safeguards which impose on administrative decision-makers whose decisions impinge on private or family life burdens significantly greater than I suspect many of them really appreciate. And the burden may extend in some instances … not merely to permit representation but even to ensure that parents—and particularly children—are properly represented when decisions fundamental to the children’s welfare are being taken”.
In other words, using the analogy of court proceedings, those who are making a judgment about a child’s welfare cannot also argue the case.
The second reason is that IROs cannot practically be expected to enable the necessary participation of the child in the review process. Despite the existing requirement in regulations for the IRO to ensure that the voice of the child is conveyed to the review, children still tell the various children’s organisations that they do not feel that they are listened to. One child said of his experience, “I told the IRO that I wanted contact with my sister but that didn’t come up at the meeting”. Well, it should have come up at the meeting.
In response to this situation, the Government have stated their intention to introduce a stronger requirement on the IRO to meet with the child before the meeting. The Minister has just reiterated that in response to the last amendment. That is welcome but will not resolve the fundamental conflict in role in that IROs have significant responsibilities in relation to chairing review meetings, which means that they do not have the capacity to give young people the dedicated support necessary to ensure that their views can be clearly represented. Independent advocates are also able to ask challenging questions of the review participants in a way that the IRO could not possibly do from the position of chair of the meeting.
The third reason is that the remit of the IRO is to act in the best interests of the child. It is possible that they may conclude that what the child wants is contrary to what is in the child’s best interests. In that situation, they would not be able to represent the views of the child.
Professional advocacy is quite different because it is independent of the system and its primary role is to work exclusively with the child to ensure that their views and rights are promoted. An advocate ensures that children understand what is happening to them, helps them to navigate the system, supports them to understand their rights and helps to ensure that those rights are met. As far back as 1997, Sir William Utting concluded in his report People Like Us that looked-after children need independent advocacy as a source of protection and as a means of making their voices heard in an otherwise very difficult system for a young child.
As we heard in our earlier debates, disabled children placed away from home most urgently need a right to advocacy because they are at least three times more likely to be abused or subjected to demeaning treatment than other children. I was delighted that the Minister in another place, Kevin Brennan, during a hearing of the Children, Schools and Families Select Committee on 20 February, agreed with my honourable friend Annette Brooke MP that children with both physical and mental disabilities should have advocates where they need them.
I emphasise that better decision-making can save money in the end. I urge the Government to think again and to deliver a statutory right to independent advocacy when significant decisions are being made in the lives of looked-after children and not just when they have cause to complain, seizing the opportunity that professional independent advocacy offers to empower young people to participate fully in decisions. It has to be integral to the strategy, which I know the Government have, of improving outcomes for children in the care system. I beg to move.
My Lords, I support these amendments. My Amendment No. 38 would place a duty on children’s homes and fostering agencies to provide access to independent advocacy. The first two amendments, to which the noble Baroness spoke, focus on the decision-making process and on ensuring that there is an advocate available in that process. I declare an interest as a patron of Voice, formerly Voice for the Child in Care, which is a widely used advocacy service.
In Grand Committee I tabled this amendment and I do so a second time because of a recent meeting held by the All-Party Group for Children on the social care workforce as it affects children. That highlighted to me again how vulnerable these children are. The Government are doing much commendable work in building up the workforce, but unfortunately we start from an extremely low level. For example, we have a great shortage of foster carers, as we have discussed already, and inevitably that means that occasionally the quality of foster care is not as good as we would want it to be—occasionally research points to that—and in children’s homes there is a great shortage of residential care workers. Over the years, it has become unattractive employment, which has implications on quality.
The Government set a target for residential childcare workers in children’s homes to attain a national vocational level 3 qualification in childcare, which is approximately equivalent to O-level, but they did not manage to reach it. There is still much to do to ensure adequate quality in the training of and equipment for staff in these settings who work with the most vulnerable children.
In many areas, particularly London, there is a shortage of social workers. That again has implications for quality because it is difficult to obtain the highest quality when one is just seeking to fill places. If one does not pay people well and does not provide them with the right professional framework, one has to recognise that one is not likely to attract the highest quality. That is no reflection on those who do the work. I take my hat off to the Government for recently increasing funding to social work, but we still have a long way to go and these vulnerable children are in the hands of people who have been neglected themselves. It is important that there is someone there just for the child, just to hear the child’s voice, just to be their champion when things do not go right—when they do not necessarily have the right social worker or the right foster carer or the right children’s home.
Under the amendment, there would be visiting advocates in children’s homes and fostering agencies. That is very important, which is why I bring it back again. I recall various visits that I have made to a children’s home: I spoke to a young man about the draughts he experienced in the children’s home; another child spoke of one of the showers constantly not working; and another one told of a table that needed to be replaced but it was not seen to. An inspector might pick up such matters, but an advocate will know the child. I ask the Minister how much of an opportunity the independent reviewing officer will have to get to know the children with whom he deals. I know that they are supposed to see them before the review, but can he remind me how often reviews take place and what real opportunity there is for a relationship to be formed? On best practice, Shaftesbury Homes and Aresthusa have a visiting advocate once a fortnight so that they get to know the children. I look forward to the Minister’s response.
My Lords, in speaking to Amendment No. 22, to which I put my name, I hope that the House will forgive me if I draw on my experience in what was probably the most interesting period of my life when I had the privilege to be a director of Oxfam. It may slightly surprise noble Lords that I want to draw on that experience, but I see a direct parallel. We aimed to empower the disempowered. If one goes down that road, it is difficult to avoid a didactic and, in effect, paternalistic approach. It is absolutely essential that the advocacy in which you are involved really advocates the position of the community with which you are working and that you are doing your best to enable them to express themselves and to be heard where it matters. It is up to the professions to get that right. I see a direct parallel. We are about empowering the child, which is why advocacy is so important and professionalism is critical.
Either we are serious in our commitment to the child, as I have said several times in our deliberations today, or we are not. If we are, I conclude, just as I did in my days with Oxfam, that perhaps one of the most important ways of looking after the interests of the child is effective advocacy. That is where what this amendment talks about is crucial. I am sure that my noble friend will take the amendment seriously and I hope that he can give a convincing response.
My Lords, the noble Baroness, Lady Walmsley, and all other noble Lords know that I have great sympathy with these important amendments. The noble Baroness also knows that I am constrained because the Children’s Society has calculated that there would be a spending commitment of £3 million and, for the Conservative Party, that is an uncosted spending commitment—although I assure her that we would look at it.
I had the privilege a few weeks ago of meeting four remarkable young people: Shareen, Charlotte, Daniel and Nadir. They were members of the children in care council from Warwickshire who came to the House. They looked around and we had lunch and thought of a suitable room to have a meeting with them in, so we took them to the shadow Cabinet room with my honourable friend Tim Loughton. We had a wonderful meeting. As you would expect, they were articulate children. We talked about certain aspects of the Bill and, when we came to independent advocacy, Daniel said that he had been pleased to have an advocate provided by Barnardo’s. There are just too many times when you are in meetings with professionals who are just talking at you and not really listening to what you had to say. This was a very articulate young man. There is a clear need for professional advocacy to, as the noble Lord, Lord Judd, said, empower the disempowered.
My Lords, I support all these amendments. They take me back a long way, to when I was chair of a juvenile court. Even in those days, one of the Children Acts advocated that children in care, or those who had no parental involvement at all, should always have a friend at their side. Maybe one needs a little more than a friend, but an independent advocate would certainly be essential in so many of the areas where decisions are being made.
It is quite clear from what the noble Baroness, Lady Walmsley, has said, and from what we have read in the briefing, that the role of the IRO is absolutely incompatible with being an independent advocate. I totally agree with all the other points made. I am afraid that, even though there is extra money involved, it is pretty essential when you are thinking about the future of children who are frankly going to cost you a lot more than that if you do not help them along the path to a rather different life in the future. I hope than when the noble Baroness, Lady Morris, looks again at the sums involved, she might persuade her colleagues that a rather more positive reaction is needed.
My Lords, we recognise that advocacy has an important role to play in improving services for looked-after children, ensuring that their voices are heard and their rights protected. The three amendments in this group make particular points about advocacy provision, and I will take them in turn.
On Amendment No. 23 and its proposed duty to provide independent advocacy services, local authorities are required, under the existing statutory framework set out in Section 26A of the 1989 Children Act, to make arrangements for all looked-after children, as well as other children in need and care leavers, to have access to advocacy services, including assistance by way of representation, to help them make representations about services they receive. This must include, but is not restricted to, the pursuit of complaints.
Statutory guidance under which local authorities must act when performing these specific duties was published in 2004. It sets out in detail our expectations of how local authorities should provide effective advocacy services. The guidance makes clear that we expect local authorities to have arrangements for providing advocacy services that are separate from their own management and delivery functions, and that they ensure that advocates are not part of the service in respect of which any complaint or representation is being made. Local authorities are free to develop their own models for advocacy services, and many contract out this service to the voluntary sector. The noble Earl, Lord Listowel, for example, mentioned Voice, which is a small charity providing advocacy for young people in secure settings. He and the noble Baroness, Lady Howarth, are patrons of Voice, and it does excellent work in this field. It is one of a number of such organisations.
Furthermore, as I said in Grand Committee, we see the role of the independent reviewing officer as central to ensuring that the voice of the child is heard. I set out at length in Grand Committee how we are building on this role, both through the Bill and the wider Care Matters reforms, to ensure that each IRO can fulfil their role with credibility.
The noble Earl asked two specific questions on IROs. The reviews are frequent: they take place after the first 28 days, then after three months and every six months thereafter. On how the IRO will get to know the child with whom they are dealing, they will have a duty to meet the child before every review and will be a named person to ensure continuity. The IRO will support children’s active engagement with the care planning process, ensuring that there is greater scrutiny of the care plan for each child in care, and ensuring that children and young people are informed of their rights if they consider themselves to have been treated unfairly.
However, the provisions in this area are not restricted to the IRO. I have already mentioned independent advocacy services. Equally important on educational issues is the role of the designated teacher in the child’s school, who will have a part to play in ensuring that the child is able to participate fully in decisions that affect him or her—in particular, those about their personal education plan. For many children, their class teacher or other member of staff, such as a learning mentor, will also be able to provide support and assistance on a wide range of everyday matters. Other children may choose to turn to their carer, their independent visitor or a relative for advice and help in addressing issues of concern to them. All of these people have different skills that the child can access when they have a need to do so.
However, as I say, we recognise the valuable role that advocates can play, and expect, through statutory guidance, local authorities to review their advocacy services annually to ensure that compliance with national standards is maintained. This includes seeking regular feedback from children about their experience of the service.
On Amendment No. 22, the existing guidance for IROs makes it clear that,
“IROs … have a role when they meet children to inform them that they have a right to make complaints to the local authority, and of the local authority’s responsibility to provide them with an independent Advocate if they wish”.
In addition, it is part of the IRO’s functions under the regulations to assist the child in obtaining legal advice if the child wishes to take proceedings under the 1989 Act. The IRO of course has the power to refer the child’s case to CAFCASS if he has serious concerns that the child’s rights are being infringed. The guidance outlines the relationship between the IRO, the designated complaints officer and advocate, and states:
“The process of advocacy and complaints can run alongside the IRO’s actions in resolving an issue, and it will be good practice for the IRO, the Designated Complaints Officer and the Advocate to agree … their respective roles”—
“in trying to resolve a complaint”—
and how they will communicate with each other. We are updating the guidance to IROs, and we will reinforce the importance of IROs informing children of their right to an advocate to make representations about the service they receive. I hope that that will go some way further to meeting the concerns of the noble Baroness and other noble Lords.
Finally, Amendment No. 38 seeks to ensure that children and young people receiving or seeking services from a children’s home or a fostering agency have access to independent advocacy services and that the arrangements for such services are publicised by placing the duty to do so directly on fostering service providers and children's homes. In practice, the vast majority of children placed in children’s homes and all children who receive services from providers of fostering services are looked after, so they already benefit from the statutory framework that I have outlined. The exceptions are those children who are placed in residential special schools by education authorities and children placed in children’s homes by health bodies. These latter children will benefit from the new statutory visiting requirement introduced by Clause 17 for their local authorities to arrange for children to be visited throughout their placement. As part of the consideration and assessment of their needs we will expect the local authority representative to consider whether access to advocacy would be beneficial to the child and appropriately to ensure that he and his parents are aware of his entitlement to advocacy support in making representations about the services that he receives.
I hope that on the basis of those assurances that I have been able to give the noble Baroness will not feel it necessary to press her amendment.
My Lords, I thank the Minister and other noble Lords who have taken part in this debate. I have been given some reassurance by the Minister, but I am not entirely happy with what he said because in talking about Amendment No. 22 and the duty of the IRO to give the child information about advocacy, he again talked about advocacy in relation to complaints only. The only thing that gave me some comfort was when he was talking about multi-disciplinary working: the advocate working with the social worker and the IRO. If that works well, it could be that the child might receive some advocacy before he found it necessary to go into the formal complaints process, which is what we are trying to pre-empt by providing greater access to advocacy. It can be much more effective to get things sorted out much earlier than when it is necessary to go through the formal complaints process.
On Amendment No. 23, the Minister suggested that local authorities already have a duty to provide access to advocacy. However, my amendment refers to,
“the sufficiency of the provision of independent advocacy services”.
As I understand it, the existing duty is to provide advocacy predominantly in the situation where the child is going through the complaints process, although I was slightly encouraged by what the Minister said about it not being totally restricted to the complaints process. Given that there is not enough advocacy around, I strongly suspect that the vast majority of advocacy interactions with children will be in relation to complaints.
I understand the difficulty the noble Baroness, Lady Morris of Bolton, has about the spending commitment we might be making if we pass this amendment because it is difficult to know how much uptake there would be and what the corresponding benefit would be in savings that might come from better decision-making on behalf of the children. Will the Minister consider commissioning some research taking a particular local authority or group of local authorities where children would be provided with advocacy far ahead of the complaints stage to see what that might produce in savings? The noble Earl, Lord Listowel, Voice and I firmly believe that there would be better decision-making which would save the great cost when placements break down, which always involves the local authority in greater costs. If we had better decision-making, we would have fewer placements breaking down and there would be savings. It would be helpful to have serious research comparing the cost of providing that additional advocacy, finding out how much additional advocacy the young people would request and offsetting that against the cost of placements breaking down because of the lack of advocacy. That would give us some idea of what this sort of provision could cost nationally, if it was rolled out. I understand the difficulty of assessing that economic figure, but I am sure it is not beyond the capability of some clever researchers to give us a reasonable estimate.
We are hearing from children and from organisations such as Voice how positive the experience can be, so I am a little disappointed that the Minister is still talking about advocacy and access to it in relation to the complaints process only. However, there were two or three little chinks of light in what he had to say, so I am slightly reassured, but I cannot promise not to come back to him at some stage with further requests for advocacy. Will he write to me and consider undertaking some serious research on the matter? In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 23 not moved.]