Report (2nd Day)
Clause 11: Welfare of the child: parental involvement
14: Clause 11, page 11, line 5, at end insert—
“(2B) Involvement is any kind of direct or indirect involvement that promotes the welfare of the child; it shall not be taken to mean any particular division of a child’s time.”
My Lords, it is with some regret that I have not sought to remove the presumption from the wording of Clause 11, although I still think it is unfortunate. I recognise the good intentions of the Government and their genuine desire to involve both parents, and more often the father, in a continuing relationship with the children after the separation of the parents. I entirely support that important aspiration. A serious part of the parting of parents is the failure of one parent, often the father, to have any future relationship with his children, who are then brought up in a one-parent family without the advantages of knowledge of and support by the absent parent.
I am, however, concerned about the message that separating parents may receive from the current wording of Clause 11. Originally the heading for this clause was “Shared parenting”. That heading, thank goodness, was removed, but it had been picked up by the press, and this clause may be seen by some as containing the right to equal access to children. There is concern, not just on my part but on that of many of the agencies, including the NSPCC, Barnardo’s and Coram.
The department has issued excellent guidance for those who choose to read it. I have no concern about the courts, judges and magistrates doing their best with litigants in person, in the absence of legal aid, to come to the least detrimental decision about the arrangements for the children. Most parents will be sensible about arrangements. However, there is a small percentage of parents—sometimes one parent, male or female, and sometimes both parents—who are utterly unreasonable, and no arrangements will be easy to achieve; sometimes it will be impossible to achieve any arrangements.
The groups of parents whom I worry about in relation to Clause 11 are those who try to settle the arrangements for the children without going to court. In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children. We know from the Norgrove report of the fine line between children at risk in the private law sector and those seriously at risk in public law. The parents of some of those children at risk may well make their decisions outside court. I want the weaker parent to have something in statute to hold on to if browbeaten.
I also worry about those who would go to court with an erroneous view of what this clause actually means, and with an inbuilt sense of their rights rather than the best arrangements for the children. The purpose of this amendment is to give some clarity to the clause and to help the public come to terms with putting the welfare of their children first. I beg to move.
My Lords, I support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss. As she said, we all know that when parents are in conflict they become engrossed in their own battle and lose sight of everything else of value, including the children. I apologise for my voice; I have just had the flu and therefore missed the first day on Report—some noble Lords will have been relieved about that.
I have talked to many children over the years, through my work at Childline and CAFCASS, who found themselves in that situation. They often feel that they are at the centre of that battle and not individuals themselves. I remember another famous quote that the noble and learned Baroness made at another time: we should never see children as objects of concern but as subjects in their own right. When parents haggle over children as property, it is our responsibility to ensure that their welfare is seen to. What has happened in the outside world is that in our attempt to focus, mainly on fathers, I have to say—there is not a balance between mothers and fathers, but a particular focus on the needs of fathers—we have lost some of that understanding of welfare, and the press really believe that fathers have had a bad deal.
I draw attention to a piece of research that was carried out recently by the University of Warwick under the auspices of the Nuffield Foundation. It looked at a large number of cases—197 were analysed— and determined how the county courts used a number of orders. It found that in contact orders,
“the courts are actively promoting involvement with the non-resident parent under the welfare paramountcy principle without the need for any further additional legislation. In 50% of all parental disputes studied, the post court care arrangement included regular, overnight contact allowing both parents to have involvement in the child’s day to day routine. 25% of cases ended in daytime only contact with the non-resident parent. Contact is often built up gradually by the courts using interim orders. This allows the courts to find an arrangement that works for the parent and the children”.
However, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, our great concern is for the families who do not go to court. Courts will often find a good solution and be able to work through it. However, there is sometimes a perception among families that there is a presumption that children will be shared. I sometimes think of that picture from the Old Testament of the child being held up by one leg with the sword of Damocles held over it; it was the good parent who said, “No, I don’t want my child to be shared”. That is often what you find: it is the good parent who gives in and gives the child to the other parent, because they want the best for their child. It is therefore on that basis—and before my voice gives out—that I support the noble and learned Baroness’s amendment.
My Lords, I will speak briefly in support of the noble and learned Baroness, Lady Butler-Sloss, who knows more about children’s law than practically anyone in this House. There is one real problem after divorce, which is that fathers, for whom the door is open, do not come and visit their children. We cannot do anything much about that. The clause may give such absent fathers the notion that they have rights but no responsibilities. If there is one thing that our family courts have got right in recent years, it is the welfare of the child. I very much hope that the House will listen to the wisdom of the noble and learned Baroness, Lady Butler-Sloss, and will let the courts get on with the good job that they have been doing without resorting to a rather artificial notion as set out in the clause as it stands.
My Lords, I, too, support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, to which I have added my name. We had a very good debate in Committee on Clause 11 about the status of the presumption that is enshrined in that clause. Concerns about preserving the overriding status of the presumption of the best interests of the child in the Children Act have been largely assuaged.
By definition it is very difficult for both parents and children when a family breaks up, and as the noble Baroness, Lady Howarth, has underlined, things can get very heated and parents can get very focused on coming out of that conflict with what they regard as the best arrangements for them.
As I made clear in Committee, I start from the position of sharing the Government’s desire to enshrine in public policy the principle of joint parental involvement in a child’s life, including after separation. I argue that for most children, the paramount principle of the child’s welfare, as enshrined in the Children Act 1989, cannot be fully met unless both parents are fully involved in the child’s life and have a continuing relationship with the child. Perhaps slightly differently to the noble Baroness, Lady Deech, I think that there is an issue to be addressed here, particularly for fathers. I agree with the Government that the principle of parental involvement needs strengthening.
However, if we agree—as I think we all do—that the paramount consideration is the welfare of the child, and that this principle should not be jeopardised or diluted, then we must also ensure that the presumption in Clause 11 is not misinterpreted and applied in ways that can be detrimental to children. Specifically, Clause 11 must not send the signal that parental involvement, which regrettably the Government initially called “shared parental responsibility”, is taken to mean that the child is divided according to some a priori formula, whether that is 50-50 or something else. Clause 11 gives a right to the child to expect continued meaningful involvement by both parents after separation. It must not be interpreted as giving a right to both parents for equal—or near equal as possible—time with the child. I know that the Government’s Explanatory Notes make clear their intentions. But there are a number of reasons why the Minister must take seriously the possibility, indeed the likelihood, of such misinterpretation.
First, the experience in Australia is that 65% of fathers interpreted “shared parental responsibility” to mean equal time. Litigation between parents increased as a result, and they had to change the system. Secondly, as touched on by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth: the clause, unless it is qualified on the face of the Bill in the way that this amendment seeks, could inadvertently increase the risk of harm to children, because only 10% of separating couples resort to the courts to resolve their contact disputes, with the majority of parents reaching agreements privately. There is concern that if it is the expectation of those parents that the law now says that the child’s time has to be carved up, then some parents may seek to use the new changes as a bargaining tool and put pressure on the other parent into making contact arrangements which are not in the best interests of the child.
Again, evidence from Australia suggests that similar reforms resulted in an increased reluctance for mothers to disclose abuse, for example, with many feeling that if there is a legal presumption of shared contact, there was little point in disclosing problems in the family. Given that the vast majority of cases do not go to court, if as a result of Clause 11 there is a common perception that having the child’s time shared out will be the norm in future, then even in families where there is no abuse or there are not problems we may still see the unintended consequence of nomadic arrangements, with a child moving between homes in a way that we would all want to avoid for obvious reasons. This would not be in the interests of most children.
Finally, and very significantly, we have to respond strongly to those parts of the media, which have promoted the interpretation which we are discussing now, despite the best efforts of the Government. I do not believe that any amount of communication or clarification can shift this now. This is why Amendment 14 is so necessary—the Government’s intention and interpretation would be quite clearly on the face of the Bill, and enshrined not in guidance but in law.
Last night we received a policy statement from the Government about Clause 11 and Amendment 14. This makes clear the Government’s intention—it is not to promote a particular division of time, but they feel that the most effective way of dealing with this is through a wider communication strategy to explain to parents what the interpretation is. This is wholly inadequate, for the reason I have just expressed; this view is already well entrenched, partly because of the initial nomenclature of shared parental responsibility and partly because parts of the media have triumphantly proclaimed that this means an equal proportion of the child’s time is to be spent with father and mother. That view is now so well entrenched that I am very concerned about the impact on expectations and, therefore, on negotiations between parents, particularly those not going to court. The most emphatic and unambiguous way of disabusing people of that false impression is to put the amendment alongside Clause 11 into the Bill. The Government will then have something in law that they can go to town about in communications, explaining Amendment 14 if it became part of the Bill.
My Lords, I believe that there is only one a priori formula, as the noble Baroness puts it, that we should have in our mind today, and that is the UN Convention on the Rights of the Child, which gives children the right to be safe and protected and the right to a family life. We all agree that that right to a family life, where it is in the child’s best interests and safe to do so, should include an ongoing relationship with both parents. Unfortunately, in many cases the parents themselves feel that they cannot continue to do that within the same home, so they separate. I believe that it is the Government’s intention in this clause to give the child that right back and ensure that the child continues to have a relationship with both parents where it is safe to do so and in the child’s best interests.
Governments make their intentions clear in more than one way. The wording of legislation is one thing, but Pepper v Hart is another. I am hoping that, in his reply, my noble friend the Minister will make it very clear that what the media have been saying is not the Government’s intention. Indeed, my noble friend has made that very clear to probably all of us in this Chamber now in private meetings, but of course it has to go on the record for people to be able to rely on it, and I am very much hoping that he will be able to do that.
The noble Baroness, Lady Hughes, mentioned the media. I call on the media—indeed, I challenge them—to give just as much space and just as large headlines after today’s debate to the Government’s real intentions on what this legislation and any surrounding regulations really mean, rather than what they mistakenly thought that they meant, which caused an awful lot of concern and worry to families who can really do without that sort of worry when they are going through the stress of breaking up and wondering what they can do to cause the least possible damage to their children’s lives while they do so. I very much look forward to my noble friend’s reply.
My Lords, I am very pleased to follow my noble friend in this debate, not least because well over two years ago, when this legislation was first mooted, I went to see her as the oracle on matters to do with the welfare of children. I said that the Government were thinking of legislating in this area, and I remember that she gave me very clear marching orders—whatever else the Government did, it must be clear that the paramountcy of the welfare of the child should be ingrained in this legislation. I have certainly taken that to heart as this legislation has passed through.
It is also true, as has been indicated and as the noble Baroness, Lady Hughes of Stretford, referred to, that we learnt lessons from the Australian legislation and we have listened to what has been said as this Bill has moved through both Houses. We have been trying consciously to get the balance right. When we were talking about the misrepresentation in the press, there was an opinion that the legislation as it stood was biased in favour of the mother. What we have been trying to do in this legislation is to have wording that gives a very clear guide that, where possible, and as my noble friend Lady Walmsley has just indicated, it is in the interests of the welfare of the child that both parents should be involved.
I would like to make a very clear statement for the official record of the House that this change is absolutely not about any particular division of a child’s time. The Explanatory Notes to the Bill state explicitly that:
“It is not the purpose of this amendment to promote the equal division of a child’s time between separated parents”.
The Government have made this very clear in previous debates. There is nothing in this clause that could be read to give that impression. I fully accept that separating parents, particularly at a time of great emotional stress, are hardly going to consult Hansard or the relevant clause of a parliamentary Bill. I therefore accept that my noble friend is right; the media have a responsibility to report the intentions of this Bill properly and not to present it in a way that would give either parent a belief that this is equal-time parenting or anything else. It is still an attempt to encourage both parents to be involved in the future of their children, but in a way that safeguards the welfare of those children. As noble Lords know, part of the aim of this policy is to address this perception that the courts are biased against one parent, generally fathers.
I apologise for interrupting but, just so that the record is absolutely straight, the Minister has mentioned on two occasions the perception that fathers were not getting the same sort of attention as mothers. Does he acknowledge that the research carried out by CAFCASS and by Nuffield shows that that is a perception and not an accurate procedure? If the noble Lord continues to repeat that perception, it will be picked up again. It is not a fact.
I hope that the noble Baroness takes what she has said to heart; what I am trying to avoid is replacing one perception with another. There is equal danger that, after a debate such as this, another perception gets flagged. What I want is to emphasise what is in the legislation and what is intended by the legislation and to use all the means at our disposal to make sure that that is fully understood by all the agencies involved and the widest range of public opinion as possible. As my noble friend has indicated, that also means that there is a certain sense of responsibility on the part of the media in reporting the intentions of Parliament.
When a case is before the court, neither parent has a right to any specific level of contact, direct or otherwise. The court must consider the child’s welfare above all else and make its decision on that basis, weighing up the evidence before it. That will continue to be the case, and nothing in Clause 11 changes that. The wording of the clause is deliberately neutral; it does not seek to pre-empt court decisions and, as now, it gives courts the flexibility to determine the arrangements that they believe are best for the child, taking account of all the evidence before them. We think that that is the right approach.
However, I agree wholeheartedly with those who have highlighted the need for a clear understanding of the policy. The reality is that any provision which impacts on parents and their private family relationships is extremely sensitive. Even the wording of the amendment could be misinterpreted in the media and give rise to unintended consequences. There is no guarantee that it would not. For example, as I said, a parent who already has very limited contact through no fault of their own may interpret the wording as endorsing that position. Our priority must be to draft legislation which achieves our intended effect and to take other steps to communicate to society more widely what that effect is. As I said, it is unlikely that separating couples will look to the Children Act 1989 to try to predict the outcome of their dispute. They will look for information online or talk to their friends and family, to organisations which they trust or their legal advisers.
The Government’s “Sorting out Separation” web app will be the first port of call for many parents looking for information about any aspect of separation and it will then signpost them to further sources of help. The app itself will set out clear information for parents about the law, and this information will make it plain that the change is not intended to be about the division of the child’s time. We will also ensure that organisations with the Help and Support for Separated Families kitemark have clear and accurate information about the changes. The web app will be embedded on the sites of organisations that have this kitemark, including, for example, Relate. This means that people accessing these websites will be able to click on a link and access information on the web app. In addition, the minority of separating parents who turn to the courts will need, first, to have attended a MIAM, and they will be encouraged to find a different way of resolving their dispute. Parents will be given information through all these routes and through other services that they may engage with.
The way to ensure an accurate understanding of the policy is for the Government to work with organisations in the sector to develop clear information which can be disseminated through these routes, not to reword the clause in an attempt to prevent inaccurate reporting of what we want to achieve. Officials have already begun discussions about the information to be developed and these will continue. We want to work with relevant voluntary organisations so that we are confident that we can address the concerns.
Right from the beginning I have never been in any doubt about the intentions of the various—in this case—noble Baronesses who have contributed to this debate. However, it is a matter of judgment, and I am asking for the House’s support this afternoon for the Government’s position. I have thought long and hard about how we can address the problems of misperception and misrepresentation, and I honestly believe that the solution put forward by the noble and learned Baroness, Lady Butler-Sloss, may lead us into the same problems but via a different route. We have tried very hard to get the balance right and, even at this late stage, I ask her to withdraw her amendment.
I thank all noble Baronesses for their contributions and I hope that the Minister will forgive me for not thanking him. I am particularly grateful to my noble friend Lady Howarth, who has put right the perception that in some way the courts are unfair to fathers. It is a perception which has, from the beginning, been inaccurate. When I was President of the Family Division, I went round the courts and made a lot of inquiries. After I had retired, I was very grateful for the CAFCASS report, which absolutely clarified what I had understood to be the case from judges right across the country—that they try cases fairly and that there is no prejudice against fathers.
I find it difficult to understand why the Minister thinks that what I think is a very modest amendment for clarification is going to be widely misinterpreted and somehow bring back the situation before Clause 11 was put forward. I take issue with him on one point. He talks about going to legal advisers. How many people in this country have the money to go to legal advisers if they do not have legal aid? It is this Government who have taken legal aid away from private law cases. When he talks about going to legal advisers, it will be a very small minority of that very small minority who actually fight cases who will get to lawyers at all. They may or may not go on the web and they may or may not read what I consider to be the excellent advice that the Government give. They will look at what the press has said and, despite the wonderfully impassioned suggestion of the noble Baroness, Lady Walmsley, may or may not choose to take any interest in this particular debate, and may perpetuate a very dangerous perception.
I must say that I worry about ordinary people on the ground who cannot get on and decide to separate. I sometimes used to say to warring parents, “You are the last people who should be making decisions about your own children because you cannot think straight about what is happening next”. Those are people—without legal advice, lawyers in court or probably ever going to court—where one of them will be dominating the other and the arrangements for the children will be unsatisfactory and, in some cases, positively dangerous. All I am asking for is some clarification, particularly for a mother because there may well be a more dominant father, although there can be a dominant mother. I have certainly seen dominant mothers and not only in the American press. It is possible that the mother or father who is not the dominant parent will look at the law and see that there is an explanation of what is in Clause 11 with this amendment.
I am truly sad that the Minister thinks that that will create some misinterpretation. Speaking for myself, I cannot see it and I rather hope that noble Lords will not see it either. I would like to test the opinion of the House.
15: After Clause 11, insert the following new Clause—
“Children’s welfare: duties of parents
For the purposes of section 3(1) of the Children Act 1989, the duties of the parent to their child are—(a) to safeguard and promote the child’s health, development and welfare;(b) to provide in a manner appropriate to the age and development of the child—(i) direction; and(ii) guidance,to the child;(c) if the child is not living with the parent, to maintain personal relations and contact with the child on a regular basis,but only in so far as compliance with this section is practicable and in the best interest of the child.”
My Lords, in Grand Committee my Amendment 56 attracted a good deal of support; there was a strong response from nine Members. That is why I am bringing it back on Report as Amendment 15.
On 9 December the Daily Mail carried an important article by Sir Paul Coleridge, a senior High Court judge with 42 years’ experience in the family and criminal courts. He drew attention to what he called the “social revolution” that has taken place in our society. Marriage, he says,
“has come to be seen as unfashionable, serial fatherhood is widespread and an ever-growing number of children are no longer brought up in stable households”.
The statistics about families that we have heard today seem to confirm that. For example, the Centre for Social Justice has recently calculated that family breakdown is now costing this country £46 billion a year—more than the defence budget. According to the Office for National Statistics, the proportion of children born to unmarried mothers last year hit a record 47.5%: that is, very nearly half. Almost half of all marriages, as well as a huge number of informal parenting partnerships, now end in divorce or separation. According to the Marriage Foundation, only 50% of children born today will be living with both their parents on their 16th birthday. What are known as “four-by-four families” are increasingly becoming a problem for schools in some disadvantaged areas. In case any noble Lords do not know what a “four-by-four family” is, it is a mother with four children by four different fathers.
Every society needs to be concerned about the way in which its children are brought up and about how they are being prepared for adult life, for citizenship and for their probable role as parents. In our society today, unwanted children, family breakdown and failure to provide a stable and supportive family for too many of the nation’s children as they grow up are seriously damaging the life chances of future generations.
My Amendment 15 simply suggests that the Government should be more transparent in the way that they define the responsibilities of parenthood—and, perhaps more particularly, the duties of fathers. It may be that marriage as we know it has or will become optional, but I suggest that parental commitment cannot be optional, because it is a duty to the child. It can be avoided only by providing adequate alternative stability and loving care. To provide non-parental alternative stability and loving care for a child is not easy. It can be expensive unless the family is prepared to step in. A much better solution must surely be to help more parents to find fulfilment in raising their own child and to help parents do the job well by adequately preparing them for it before they start having children. Not having children may become a desirable option for some, but these things are not going to happen unless all young adults are aware of how much their child needs their love and care, and of the stability of growing up in a supportive family.
Amendment 15 suggests that a change in the wording of the law could make it clearer to all parents how important they are to their children. Since Grand Committee, I have had a very helpful meeting with the noble Lord, Lord McNally, on this subject. I also want to thank Relate, which has kindly prepared for me a very useful report on the current position of the definition of parental responsibilities and duties in the law, in this country and in other European countries. I think that all 29 countries that it examined realise that it is a difficult area for law, but few if any European countries have a less helpful definition than ours.
Undoubtedly, there is a need somehow to make it clear to parents and prospective parents that, whether they like it or not, all parents have an onerous responsibility to provide for the well-being of any child whom they bring into the world. During our meeting the noble Lord, Lord McNally, suggested that the Government may be able to come forward with other proposals to encourage responsible and committed parenting that might be even more effective than changing the law as it defines the duties of a parent. If the Government are able to achieve that objective without changing the law, I accept that that may be the best way forward. I look forward to hearing the Government’s proposals. I beg to move.
My Lords, I declare an interest as a trustee of the Marriage Foundation. I express my admiration for the tenacity of the noble Lord, Lord Northbourne, in pursuing this difficult, worrying and extremely important issue. Parenting must be a matter of responsibility rather than rights; that point needs to be put forward again and again in every single place where it can possibly be put. The admirable proposals that the noble Lord, Lord Northbourne, put in Amendment 15 ought to be placed somewhere by the Government. Whether they should be in primary legislation, I am not convinced, but certainly they should be in guidance and, possibly, in part of the pack given to parents when they separate so that they can recognise their responsibilities after separation. I should like to see this sort of thing in libraries, as part of the school pack in the sixth form and in sixth form colleges, and in universities and colleges of further education. The duties of parents that the noble Lord, Lord Northbourne, has set out here should be part of what all young and not so young people who are of an age to be parents should have in their minds.
We ought to stop talking about the rights of parents and start talking about the responsibilities referred to in the Children Act, and also about duties. It is interesting that the word “duty” is almost never used, but it is as important today as it was in the 19th century. It is time we started to use it again. I express again my admiration for the noble Lord, Lord Northbourne, and I hope that what he has said will be taken further.
I declare an interest as a vice-president of the charity Relate. I have great sympathy with what the noble Lord, Lord Northbourne, is trying to achieve through this amendment, although I feel that primary legislation is probably not quite the right place to put across this very important message. I agree with the noble and learned Baroness, Lady Butler-Sloss, that it is important to emphasise at every opportunity that this is about parental responsibilities rather than rights. That must flow through all the messaging and communications that we talked about when we discussed the earlier amendment.
I, too, should like to see this guidance offered at many different opportunities. I should like to see this sort of guidance as an integral part of relationship education. We talked about the importance of relationship education in Committee, and I suspect that we shall return to it later. I should also like to see it included in the various pilots for birth registration in different venues. It would be good to see it included there, and in the various packs—Bounty packs and others—that are prepared for new parents. I should like to see it at the new-parent stage, at the education stage and especially in the various advice and guidance packs that are available for separating parents. It has a lot to offer. It is a very important set of messages. I just happen to think that primary legislation is not quite the right place for it.
My Lords, since the Minister may be looking at this matter more fully, I suggest as a footnote to this discussion that he might look at the Family Law (Scotland) Act—I think I have the correct name of the Act, although I cannot give the date. The introductory text to that Act makes exactly the point the noble Lord, Lord Northbourne, is making. It talks about the responsibilities of the parent to the child. The following section I think uses the word “rights”, but it is talking about the child’s rights rather than those of the parents. It is the counterpart to responsibilities. It has been set out in primary legislation, I think on the recommendation of the Scottish Law Commission, that it is a useful checklist of the corresponding rights of the child, but particularly of the responsibilities that rest upon the parent throughout the child’s childhood. The Minister might find this piece of comparative law helpful.
My Lords, I will add a brief note. While I probably agree that the Bill is not the right place for these proposals, I remember the excitement of the early days when I appeared in your Lordships’ House and what was then the new Labour Government had brought in something called citizenship. It generated a lot of excitement because it would obviously have been a good place in which to put over the responsibilities of parents. Alas, it never happened, because citizenship got whizzed all over the place.
I have somewhat changed my views over time on PHSE. That also could be used rather more effectively in schools in the future in these areas. Above all, I emphasise the point that the earlier you can work with children on what their own children are going to need, the better. Hopefully, not only will it prepare them for being better parents but it might also help them be rather better sisters and brothers, if they are living in households where they need that extra guidance.
My Lords, yet again one finds oneself rising in admiration for my noble friend Lord Northbourne’s persistence in pursuing these matters over and again. I always listen with great care to the good sense that he exposes on these occasions.
Recently I had to inspect prisons in Kenya on an extradition case. I was very struck that as we went inside each prison, there was a large board that was published by the Human Rights Commission of Kenya, listing the rights of prisoners and, underneath them, a list of their responsibilities. Reflecting on what my noble and learned friend Lady Butler-Sloss said, I remember seeing in a young offender establishment in Belfast the most imaginative course that I have seen for young people, which was called “Learning to live alone”. In addition to all the practical things that it taught them, parenting skills were in there. I remember being very taken by the fact that the question of rights and responsibilities was used in that course to educate them in their responsibility as parents. It was very well and admirably done, because it was not overdone; one has to be terribly careful about preaching to the young. The sooner that one can start getting the idea of parental responsibility out while people are at school, rather than waiting until they become parents, the better.
My Lords, there is very little that I wish to add, or indeed properly could, to what has been said so splendidly by everyone who has taken part. I join in congratulating my noble friend Lord Northbourne. He has been dedicated, committed and consistent in his campaign, and I am sure that it does not end today.
The one point that I wish to make, which follows on from what has already been said by more than one contributor to this debate, relates to fathers. We hear so often of fathers who have been deprived of custody of their children, and indeed of contact with them. A huge campaign, which I think is very misinformed, has been fought over the years, and I know many judges who have suffered considerably on account of the malicious attitudes of people in that connection. The point that I wish to make is the obvious one: we should be thinking all the time of those hundreds of thousands, possibly millions, of fathers who have no interest whatever in maintaining any relationship with their children. As a circuit judge sitting in family matters, I felt that if there was a magic wand that one could wave to bring about a better situation in the family context, it would be someone to inculcate those people with a feeling for their responsibility.
My Lords, all the contributions that have been made share the view of the noble Lord, Lord Northbourne, that it is important that children have appropriate support and guidance as they go through life, and as they themselves become parents. I do not think that there is disagreement here, although I think that a number of noble Lords caveated their support for the noble Lord with the same doubt that I have over whether what he seeks to do is necessarily best done in primary legislation.
Still, a number of the points that have been raised colour this debate. I fully agree with the noble Baroness, Lady Howe, and the noble Lord, Lord Ramsbotham, among others, that the earlier we start educating children about the responsibilities they will one day have as parents, the better, and I think that sometimes we have been afraid of taking those messages into school and the mainstream of our education.
I will certainly take the suggestion made by the noble and learned Lord, Lord Hope of Craighead, about looking at family law in Scotland and how it deals with the matter. In my period in this job, I have been advised that “They do this better in Scotland” on a number of occasions. I must be careful that I do not influence decisions yet to be made, but a useful benefit of our union is that we can look at each other’s experiences, and I will certainly do that.
The running theme is getting the balance between rights and responsibilities and duties right. This House may perhaps sometimes seem fuddy-duddy to a younger generation, but one of its jobs is to remind our citizens about their duties as well as their rights and responsibilities and it is in that mood that I respond to this debate. No one would disagree with the aim of this amendment, but there may be differing views on how best to respond to the challenge. Parental responsibility is a fundamental concept in the Children Act 1989 and refers to all the rights, duties and responsibilities of parents towards their children. Case law has established a clear understanding of what that means. A parent’s responsibility for protecting and maintaining their child is considered to be among the most important components of parental responsibility. So, too, is having contact with the child.
However, what parental responsibility means in practice, and how it is exercised in practice, will be linked to the circumstances of the individuals concerned. For example, a parent who for many possible reasons does not have contact with a child is unlikely to be able to exercise parental responsibility in the same way as the parent who lives with the child. Any further definition of what is meant by parental responsibility would erode the courts’ flexibility to determine what parental responsibility amounts to in individual cases in a way that moves with the times. No evidence has been put forward to suggest that the existing definition is problematic, and we have had no indications from the judiciary, which applies the definition routinely in family proceedings, that change is needed.
So, while I sympathise with the noble Lord’s objective, I am not persuaded that this is the right way to achieve it. Instead, I believe that the role of government is to provide information, support and advice to those who need it to help them to fulfil their role as parents and to understand beforehand what parenthood entails.
There are a number of ways in which we are doing this. I summarised them in a recent letter to the noble Lord, which was copied to others who spoke on this debate in Grand Committee. For example, we are providing grant funding to a number of organisations whose projects support parents and families in a variety of ways. As part of this, we are funding One Plus One to run a series of campaigns to promote relationship support targeting young people and new parents in particular so that they see accessing relationship support as a normal thing to do to strengthen their relationship, rather than at crisis points. The family nurse partnership programme, funded by the Department of Health, is a licensed programme for vulnerable first-time young mothers. It works with young parents on attachment, relationships and psychological preparation for parenthood through intensive and structured home visiting delivered by specially trained nurses from early pregnancy until the child is two.
I agree entirely with my noble friend Lady Tyler about the important role of schools. All schools are required to provide a balanced and broadly based curriculum which prepares pupils at the school for the opportunities, responsibilities and experiences of later life. In teaching sex and relationship education, it is a statutory requirement for schools, including academies through their funding arrangement, to have regard to the Secretary of State’s Sex and Relationship Education Guidance of 2000. That guidance states that secondary schools should, among other issues, teach relationships, love and care and the responsibilities of parenthood as well as sex, to teach the taking of responsibility and the consequences of one’s action in relation to sexual activity and parenthood. As noble Lords may know, amendments have already been tabled to be debated later in the Bill on personal, social, health and economic education, PSHE, and on sex and relationship education —I think the noble Baroness, Lady Howarth, has those amendments. That will come up on the fourth day of debate, so we will have a chance of discussing those aspects of it later in this Bill.
As I said, I think it is well apposite that the noble Lord, Lord Northbourne has raised these matters. I hope that, both in our one-to-one meeting and in what I have said today, he can see that the issue that he is raising is very much on the Government’s radar. I think there is cross-party support and support around the House for his objectives; the only doubt is whether his amendment meets the needs of such a broad-based response to this issue. I hope that, in the light of this response, he will agree to withdraw his amendment.
I am of course most grateful to the noble Lord for a very full response. I hate to say this, but I think that the statistics which I disclosed in my earlier remarks show that those well intentioned things which the Government are doing are, alas, not achieving the objective we hope. I wonder if we could not perhaps rethink how we approach this issue. Instead of telling young people what they should not do, why do we not make them feel good about doing what they should do—proud to be a father, proud to be a good parent? I do not know, but it is just an idea.
Anyway, I think I have to accept that primary legislation is not the answer now. I believe one day we will find it will improve the law in the 1989 Act because it is currently too vague for words to be of the slightest use, but that is another matter. I beg leave to withdraw the amendment.
Amendment 15 withdrawn.
16: After Clause 14, insert the following new Clause—
“Care proceedings: standard of proof
(1) The Children Act 1989 is amended as follows.
(2) In section 31 (care and supervision), after subsection (2) insert—
“(2A) Subsection (2) above shall be interpreted so as to permit a court to infer that a child is likely to suffer significant harm from the sole fact that the child is, or will be, living with a person who is a possible perpetrator of significant harm to another child.
(2B) For the purposes of subsection (2A), a person (the person concerned) is to be treated as a “possible perpetrator” if—
(a) a child has suffered significant harm;(b) the court is unable to identify the actual perpetrator of the said harm but identifies a list of possible perpetrators by finding (in relation to each such person) that there is a real possibility that he caused significant harm to the child; and(c) the person concerned is one of the persons on the said list.””
My Lords, I imagine that most of your Lordships have some experience of the procedure for taking children into care, probably more experience than I have. For those who have no such experience, perhaps I should say a few words of explanation.
We are concerned with the interaction of two sections of the Children Act 1989, Section 1 and Section 31. Section 31 provides that a child may be taken into care only if it,
“is suffering, or is likely to suffer, significant harm”.
“Likely to suffer”, in that context, does not mean more probable than not. It means only that there is a real possibility that it will suffer significant harm, a possibility, as it was put by one learned judge, that cannot sensibly be ignored.
Section 31 is usually referred to as the threshold provision. Section 1 sets out the welfare principle, and it is at the welfare stage that the court decides, after a full hearing on all the facts, what is in the best interests of the child in question. The fact that the threshold stage is satisfied in any particular case does not mean that a child will necessarily be taken into care. Conversely, if the threshold test is not satisfied, the court has no power to make an order under Section 1 and the child will remain at risk, if there is a risk.
Those are the relevant provisions. How then have they worked in practice? Where a child has been seriously injured while in the care of its parents, it may be taken into care without the court having to decide whether it was the father or the mother who inflicted the injury—let us call that child, child A. The difficulty arises when the father and the mother split up. Let us suppose that the father goes to live with another woman who already has a child—let us call it child B —about the same age as child A. If the local authority has proved on a balance of probabilities that it was the father who injured child A, child B may be taken into care, depending on what is in the best interests of that child. The threshold in that case will have been passed. However, it often happens that the father and the mother each blame the other for the injury to child A and, as a result, the court cannot decide at the threshold stage where the truth lies. One very experienced judge, Mr Justice Wall, later to become President of the Family Division, described this as a commonplace occurrence. In a very recent case, Re J, the Supreme Court has decided that if at the threshold stage it cannot be decided whether it was the father or the mother who injured child A, child B will remain at risk in those circumstances.
The noble and learned Baroness, Lady Hale, who gave the leading judgment in that case, went on to say that such cases are of “vanishing rarity”. I am not sure why she should have made that point. She cannot surely have been saying that because such cases are so rare it does not matter if an occasional child is left at risk. But, whatever the reason, it is on this point that I would respectfully disagree with her and for a number of reasons.
In the first place, if cases in which the court cannot reach a decision at the threshold stage are as rare as all that, why have they caused so much concern? That they have caused concern is not, I think, in doubt. That concern first came to the surface as a result of an earlier observation made by the noble and learned Baroness, Lady Hale, in a case called S-B, a case on very similar facts in which she held that the threshold had not been crossed. Once again, the noble and learned Baroness described that case as being one of “vanishing rarity”. Again, if that be so, why did the local authority in the more recent case, Re J, go to the length of constructing an artificial case, which it did, in order to challenge the decision in S-B? Why did it take that case all the way to the Supreme Court to test that very point? It simply does not make sense. The answer must surely be because cases such as S-B and Re J are not as rare as the noble and learned Baroness, Lady Hale, had in mind and because the decisions in S-B and Re J have caused real concern among local authority social workers.
Secondly, I turn to the Government’s approach. On 25 November the three of us—one of whom cannot be here today—had a useful meeting with the Bill team, for which we are very grateful. In a letter dated 29 November it was said that the Government could find no evidence that social workers were in any way concerned about the present state of the law. That letter was followed up by a letter of 4 December, in which the Government quoted the views of the Association of Directors of Children’s Services that it does not recognise Re J as having caused concern among social workers and it is unaware of any problem in this field.
The Government’s case in response to the amendment —so far as I know, it is the only response—is that there is nothing here to worry about. That approach is impossible to reconcile with the evidence of John Hayes QC, leading counsel specialising in the field of child protection. I have a copy of the opinion dated 12 December in case anybody would like to see it. He describes the views expressed in the letters written on behalf of the Government as very surprising. In his experience and that of his colleagues working in the field, the two decisions to which I referred have indeed caused considerable concern to local authority social workers. He quotes chapter and verse, which I shall not do this afternoon.
Thirdly, I must refer to the judgment of Lord Justice McFarlane in the Court of Appeal in Re J. As the House will know, he is a very experienced judge in the Family Division. He gave the leading judgment in the Court of Appeal in Re J, with which the noble and learned Lords, Lord Judge and Lord Neuberger, both agreed. The judgment is 30 pages long, so I will not read it to your Lordships—but I have read it myself, and I have reread it many times, with increasing admiration. There is no doubt that, unlike the Association of Directors of Children’s Services, Lord Justice McFarlane does see a real problem here. There is no doubt that he would have allowed the appeal of the local authority in Re J if he had not been constrained, as he was, by the decision of the Supreme Court in S-B, the case to which I have already referred.
Lastly, on the evidence, I have made such inquiries as I can of the judges who decide such cases at the threshold stage. How often does it happen in practice that, on the evidence available at that stage, it cannot be decided whether it was the father or the mother who inflicted the injury? The answer I get is that it is by no means uncommon. It is certainly not vanishingly rare. I accept, of course—indeed, I am greatly reassured—that in most cases the judge will be able to decide, by taking other factors into account, whether it was the father or the mother. But there will undoubtedly be some cases in which the judge simply cannot decide at the threshold stage. It is the purpose of this amendment to cater for those cases and it does so by enabling the case to proceed as smoothly as possible to a full hearing on the facts at the welfare stage.
I must now refer, as briefly as I can, to some of the points made in Grand Committee. In replying to the debate the noble Lord, Lord McNally, was concerned that the amendment would enable the local authority to make a case on the ground that the father might have inflicted the injury—in other words, on the ground, as he put it, of unsubstantiated suspicion. I cannot stress strongly enough that that is not the object of this amendment, and nor would that be its effect. The amendment would apply only where the father was one of two people who did inflict the injury, which is a very different thing.
The noble and learned Lord, Lord Mackay, made the point that Section 31 has stood the test of time, and I agree. But why has it stood the test of time? The answer is because, until very recently, courts up and down the country have followed the guidance given by Mr Justice Wall, as he then was, in 1998, before he became President of the Family Division, in a case called CB. That guidance was approved by the noble and learned Lord, Lord Nicholls, in the House of Lords in a case called Re O that was decided in 2004. That guidance worked very well until very recently when the noble and learned Baroness, Lady Hale, threw doubt upon it in Re S-B and until in Re J the Supreme Court went further and disapproved that guidance. The purpose of this amendment is to restore the position as it was before Re J. It is therefore in no sense a leap in the dark. If John Hayes, the learned Queen’s Counsel, is right in paragraph 19 of his opinion social workers will breathe a sigh of relief if this amendment is accepted and will know definitely where they are.
Finally, and with apologies, I must refer to the speech of my noble and learned friend Lady Butler-Sloss. She made much of the point in Re J that it was a decision of seven judges, two of whom have great experience in this field, and that they were all, as she put it, absolutely unanimous. I agree of course that they all reached the same result. However, the point would perhaps have somewhat more force if they had all given the same reasons. They did not. One of the judges, Lord Wilson, who has great experience in this field, disagreed with the others, and three of the judges, led by Lord Reed, expressed their concern that the law in this field had become so complicated but said that it was now too late for the Supreme Court to do anything about it. It cannot, I think, be said that the trumpet in Re J has given a very certain sound. Be that as it may, what is certain is that there is a real problem here which needs to be solved, and solved urgently. The purpose of this amendment is to do just that. I beg to move.
My Lords, I supported this amendment in Grand Committee, and having added my name to it, I support it again today. I stress again today, as I did in Committee, that this is a threshold provision—that is fundamental. That provision dictates just when the court gets jurisdiction to deal with a case. The situation is identified in the proposed amendment and has been explained by the noble and learned Lord, Lord Lloyd. The question is, when an adult who is caring for a child is the possible perpetrator of the death of or serious injury to another child, does the court have the power to deal with the case? Has the threshold been crossed?
That is a very different question—and this is also crucial—from asking whether a care order or a supervision order should then be made. The noble and learned Lord, Lord Mackay of Clashfern, said in Committee that it would be “quite unfair” to take someone’s child into care merely because another person who has come to join that family is a possible perpetrator of another child’s harm. I entirely agree with him on that. But as the noble Baroness, Lady Howarth, noted in Committee:
“It is not being suggested that the children should be taken away. The suggestion is whether we are able to move to the welfare question”.—[Official Report, 21/10/13; col. GC 329.]
The noble Baroness had earlier explained that the result of the comparatively recent interpretation given by the courts to Section 31 was that the social workers,
“now … cannot move to the welfare principle quickly enough, which means that often they cannot gain access to the home where the perpetrator is living”.—[Official Report, 21/10/13; col. GC 326.]
She also noted that,
“social work organisations are extremely concerned about this situation”.—[Official Report, 21/10/13; col. GC 326.]
Indeed, Lord Justice McFarlane in the Re J case described it as,
“a cause of concern amongst child protection agencies”.
Apparently it is now suggested by some that there is no real need for this concern, and that social workers have no such concern. I do not pretend that I ever practised in the field of family law, so I can claim no personal experience of the problem resulting from Re J. But having read and reread more than once the very full counsel’s opinion by a Queen’s Counsel specialising in this area of work—an opinion to which the noble and learned Lord, Lord Lloyd, has already referred, and which he yesterday copied to many of those who were to take part in this debate—it is difficult to see how the present interpretation of the Children Act 1989 could be thought not to cause concern. It is all very well to say, as has been said, that Section 31 has stood the test of time. As has been pointed out, Section 31 only received its present interpretation in the 2009 case of Re S-B. It was that interpretation by which all seven members of the Supreme Court understandably felt themselves bound in Re J last year.
These comparatively recent decisions are the ones which counsel says,
“have caused such consternation amongst those working to protect vulnerable children”.
As to the suggestion that there is no problem in practice, counsel observed:
“This is certainly not my experience nor that of my colleagues working in the field of child protection”.
To the question whether there is the need to ensure protection of unharmed children, where another child has suffered harm or death commonplace, counsel answered with “an unequivocal yes”, having himself,
“acted in many cases involving an unharmed child living with a possible perpetrator of past harm to another child”.
“The working of the amendment would mean that the Section 31 threshold can be crossed on the basis of likely significant harm. This would then open the way for the full range of protective orders available to the court (the ‘welfare stage’ of the process). Once the threshold is crossed, the court would be in a position to account for all relevant factors”.
A little later he adds:
“It by no means follows that the unharmed children would be removed permanently. The amendment ensures a legal structure whereby the Section 31 threshold is crossed to enable that welfare balance to be conducted. If it is not crossed, then that stage is never reached”.
His opinion ends thus:
“The best solution to these cases is to find the threshold crossed but that the welfare decision must be made with it very much in mind that the parent is a possible rather than an actual perpetrator. The proposed amendment would achieve that balance and secure child protection”.
That is the question before us today. Should the threshold be lowered to where for the first 20 years of the Children Act’s operation it was understood to be, to enable the court to move to the welfare stage and allow it, with the help of the social workers, to investigate all the circumstances of the case and decide whether, in those circumstances, some care or supervision order should be made? No child could properly be taken into care merely—and I stress that word—because one of its carers was the possible perpetrator of past harm. I think that we all agree on that, but that fact alone must warrant a full welfare investigation. Surely we owe children at risk no less than that.
My Lords, this amendment raises an issue that has engaged academic legal discussion for about 18 years. I hear with some surprise the fact that some dramatic change was made in the case of Re J. That is not my impression.
There are, of course, two schools of thought, as there are in so many issues, even in family law. During the many years when I was a family judge, I heard many child injury and death cases and agonised over where the line was to be drawn between the protection of a child from significant harm and the importance for the child and the rest of the family of not removing that child from the family home on insufficient evidence. In the case that precipitated this amendment, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, the seven members of the Supreme Court were in fact unanimous on this issue although they disagreed on some less important points, as I would respectfully call them. They decided on the balance of the bare facts of the case that they were against the removal of the children and that the threshold had not been crossed. Put at its simplest, this is a question of whether you remove a child on suspicion or go to the welfare stage on suspicion or whether you have to have evidence before you cross the threshold.
I was never a Supreme Court judge, but I respectfully agreed with the seven—
I am sorry—I was talking about the removal of the child or looking at other aspects of the welfare stage. I am sorry if I conflated that, but the noble Lord is absolutely right. It is a question as to whether the court can make decisions which include the removal of the children or the removal of the parent or putting in place supervision orders or various other intrusive orders into the family.
I suggest that this House should be cautious, when seven judges have said that the threshold has not been reached and crossed, about passing an amendment to the contrary effect. I was going to go through at some length the two cases that I think are relevant, because we go back to 1996—we do not start in 2009—but it is probably unnecessary. However, it was unrealistic for the Supreme Court to be given the one bare fact and not the surrounding circumstances, although it was undoubtedly intentional. In my experience of 26 years sitting as a family judge, 15 of them spent hearing this sort of case—many children who died and many who were seriously injured—as well as eight years spent hearing them on appeal, then going back to hearing them again as a first-instance judge, I do not remember a single case where this bare fact was the only point that the court had to deal with. So I believe that the cases are rare, although I entirely accept what the noble and learned Lord says—that even the rare cases, naturally, have to be protected. But if there is nothing but suspicion, I would suggest to your Lordships’ House, as the Supreme Court judges said, that you should not remove the child on suspicion.
The court has the jurisdiction to look at the entire case, although it is not able to make a decision on welfare in looking at the threshold point. There may have been some degree of confusion in Grand Committee as to what in fact the local authority and the court could do. I hope the House will forgive me if I go through briefly what I understand the situation to be. I would be astonished if it has changed from the days when I was sitting as a judge.
If you have a person, whom I will call P, who has been in a pool of possible perpetrators but not identified as the actual perpetrator of the injury or death of a child, the social workers are not precluded from investigation. I respectfully disagree with my most experienced noble friend Lady Howarth in saying that the social workers might not be able to enter the house or make the proper investigations. With the person, P, having been in a pool of possible perpetrators of the death or injury of a child—in the particular case of J, the child aged, I think, three weeks died of asphyxia but also had terrible injuries—the social services, if they had been alerted that P was in a new family, would see that as a highly relevant factor and naturally very worrying. The local authority has a duty under Section 17 of the Children Act 1989 to safeguard and promote the welfare of children in the area who are in need. It is almost certain that the sole fact available, that P had been in a pool of perpetrators, would trigger immediate action by a local authority.
Under Section 47(1)(b), a local authority in circumstances such as these would have a duty to make inquiries. A social worker would investigate and be likely to visit the family. If the inquiries are frustrated by access to the children being unreasonably refused, there may therefore be grounds for seeking an emergency protection order under Section 44(1)(b) or (a), for possible removal of the children from the home because of what is going wrong if they are not being allowed to see the children.
The local authority could also seek a child assessment order under Section 42(3). In any event, the local authority would be likely to seek an interim care order from a family judge under Section 38(2) in respect of the children. It would not look well to the judge if the parents refused access to the children; that would be a major marker against what was going on in the family. The children might be taken into interim care but, in the case of J, the mother very properly left the home so that the children could continue to live with the father. She moved out.
There would be a directions hearing by the judge of the care application and a CAFCASS guardian would almost certainly be appointed. During the period leading to the substantive care hearing, the family would no doubt be examined in depth. At the main hearing, P would clearly have to give evidence and be cross-examined as to what happened in the first family when the child was injured and died. She—it was a woman in that case—and J would be cross-examined up hill and down dale as to why she had not protected the child, whether she was actually the perpetrator, why she had not seen the injuries to the child, what she was doing while this child was being hurt, and whether she covered up for the other parent. Those are terribly relevant factors and, I would suggest, relevant factors to crossing the threshold if she gave unsatisfactory answers and if she was not believed by the judge. There would be assessment reports from the social worker, and of course the guardian would give his or her own report on the family’s position. All the circumstances would be very carefully considered by the judge in deciding whether the evidence available to him or her was sufficient to cross the threshold barrier.
Clearly, how well the new family were getting on and the care given to the new family by P and by the other partner were relevant to identifying whether there were other concerns that might tip the evidence over the threshold. Only if there were no evidence at all other than the bare fact of P having been in the pool but not having been proved to be the perpetrator would the evidence be insufficient to cross the threshold, and the judge would not make a care order or some other order excluding P from the care of the children. That is the point at which, if you do not cross the threshold, you cannot make a decision about removing the children or putting in a supervision order or any other sort of order.
I am very grateful to my noble and learned friend for giving me the opportunity to read the opinion of John Hayes. Of course, I respect his experience as an advocate in care proceedings but I disagree with his conclusions. Perhaps I may make a number of points on his opinion. He talks about a case of twins where the unharmed twin would be in danger if not removed from the family where the first child had been injured. In that case, the unharmed child would certainly be removed. However, we are considering a new family where one adult member is a possible perpetrator but there is now a new family unit with an adult against whom there are no allegations at all. It may also be relevant that in the J case the injuries perpetrated on the child took place seven or eight years before, and undoubtedly P would have matured. I believe that in that case she was extremely young—16 or 17 years old. She was in a much more stable and supportive environment and therefore might not pose a threat.
Taking the other points made by Mr Hayes, if a local authority becomes aware that a possible perpetrator is in the new family, I have no doubt that it will issue the proceedings even if there are no other concerns, and I am surprised to hear John Hayes say something to the contrary. I do not believe that the judge at the interim care stage would dismiss the proceedings before having the opportunity to see all the reports and examine all the evidence. If counsel for the parents applied at the interim directions stage to have the case dismissed, I would be equally surprised if the judge dismissed the case before the full hearing. I certainly would not have done that because I would have been worried. Of course, you would be worried until all the facts were in front of you. I would hope that the child’s guardian would look at the best interests of the child in the broadest sense and take into account the need for a balance between protection and the right of the child to have a normal life with the natural family. Interestingly, Mr Hayes talks about the balance between protection of the child and the rights of the parents to have a family life. For goodness’ sake, the right of the child to have a family life is much more important than the right of the child’s parents. What we have here is a balance between protection and the right to family life.
It seems to me that there has been an overreaction by academics, some social workers, some lawyers and some judges. The other side of the coin is the real danger that, if this amendment is passed, children may be permanently removed from their parents, their homes, their schools and their friends on a suspicion that the person concerned was in the pool of perpetrators, although he or she cannot be proved to have done the harm. That would be a great injustice to children, it would cause significant harm where there was no serious threat to children’s well-being and it would tilt too far towards intrusion by the state into family life.
My Lords, I have grappled long and hard with this tricky issue. I should like to reduce it to three brief propositions, which have led me to agree with the noble and learned Lords, Lord Lloyd and Lord Brown. First, it is sadly too frequent that we do not know which of two parents may have harmed a child. Each blames the other; it is not provable; and one of them goes on to form another family. There must, therefore, be some danger because the parent either did it or stood by while it happened. Secondly, we are talking about only reaching a threshold. It is not a question of leaping to the conclusion that the child must be removed. It simply triggers the ability of the courts and social workers to investigate what is going on. Thirdly, there is absolutely no possibility of harm ensuing from the amendment put forward by the noble and learned Lords, whereas there is a distinct possibility of harm if this amendment is not agreed. A number of distinguished academics have written with great alarm calling for a change in the current situation and in support of the amendment moved by the noble and learned Lord, Lord Lloyd, with which I hope that the House will agree.
My Lords, I find myself in a maelstrom of lawyers with no voice. My position is that we been asking two questions which do not necessarily have the same answer. When I read the response from the department about this proposal, it became clear that we are considering two different issues. One is whether a local authority has enough powers to move into a family and take action if it believes that there is significant harm or the likelihood of significant harm. Of course, the ADSS and everyone else will say that they do have enough powers because that is clearly so. The criticism comes when local authorities do not move when they have that capacity.
The question we are considering is when two people have been in a situation where a child has been harmed. Perhaps I may put a bracket around that thought for a moment while we remind ourselves of the time when, if a child was murdered and you could not prove which of two people had done it, both were acquitted. There was a huge campaign by the NSPCC to ensure that that could not happen; that is, if a child was dead and clearly it was one person or the other, both people involved were likely to find themselves found guilty until such time as there was greater clarification. We can close the bracket there and say, “Here we are: we find ourselves in a situation where there are two people involved, someone has committed harm and maybe killed the child”. Recently, I spoke to a serious lawyer and a previous Attorney-General, who I probably should not name at the moment, who said, “If there is the slightest margin that there is a risk that the child might end up dead, what action do you take?
My noble friend Lady Deech has made the speech which I would have liked to have made. She has made important points. This amendment will do no harm. This afternoon, your Lordships have had a real seminar on Section 31 of the Children Act and the level of thresholds. It is important that we take action that protects children if it does no harm. I am more concerned that action is not taken by local authorities than that they are likely to whip children into care. To use a word we heard earlier, the “presumption” that local authorities take children into care wantonly is just not true. In fact, it is very difficult to get your child into care if you want to. A great deal of work and assessment thresholds should be considered.
All we are saying is that to get to the threshold of Section 31 where there has been this risk and there is possible danger, the local authority should be enabled to take some action, which will not necessarily, as mentioned by the noble Lord, Lord Elton, result in the child being removed from home. In fact, it is unlikely, unless there are serious risks, that the child will be removed from home. The amendment will clarify this bit of law. Do not worry if you feel confused: sometimes I find it extremely confusing and, despite what their bosses say, quite a lot of social workers on the ground find it confusing, too.
My Lords, the spectacle of a succession of retired senior judges re-arguing the law in your Lordships’ House may be a relatively novel and possibly relatively unwelcome experience for those noble Lords who are not versed in the technicalities, but I nevertheless rise very reluctantly to oppose the amendment. No one could be fuller of admiration and respect for my noble and learned friend, Lord Lloyd, who moved the amendment, but it is right to say a few words because this is not just a point for lawyers. It is a point of enormous importance. It is a terrible thing if a child is taken by the state away from his parent or parents on inadequate grounds on the basis of suspicion that is unfounded. It is also a terrible thing if the child is not protected against abuse in the home. There will always be cases in which it is hugely difficult for the courts to determine which of those is the more important, because it is often a question of balancing one risk against another.
As my noble and learned friend Lord Mackay said on an earlier occasion, I believe that the threshold test in Section 31 of the Children Act has stood the test of time. In one form or another, this point has been considered on at least six occasions since 1995 either by your Lordships’ House in its judicial capacity or by the Supreme Court. It is not correct that the case of Re J has suddenly plunged the whole of the law into uncertainty. Re J was a remarkable, unusual and sad case, as so many of them are. I will say a word about that and about what the Supreme Court decided. I will do that as briefly as I can.
My noble and learned friend Lord Lloyd gave us child A and child B. In fact, in Re J they went from child A to child F. We start with the mother. She is ultimately the wife in a stable marriage. The wife, in a relationship with another man, had child A and child B and child A died of serious non-accidental injuries at the age of only three weeks. That led to proceedings in relation to child B, who was the other child of that relationship. Child B was then adopted and disappeared from the scene.
Child C was in fact a child of the same mother and father but was believed to be the child of another father, and it was only later that a DNA test established the true paternity. Child C was one of the children who formed the later stable relationship between the wife and her husband. They had one other child, who was not the subject of care proceedings, child D, and children E and F were the children of the husband through another relationship.
So it was a very complicated situation indeed, and it was children C, E and F in relation to whom the care proceedings were taken out. By then, the mother, who was, as my noble and learned friend, Lady Butler-Sloss, said, very young at the time that child A and child B were born, appeared to be in a stable relationship, but in the proceedings relating to the death of child A and the future welfare of child B, the family judge said, almost in terms, that it was unnecessary to decide whether it was the mother or the father who perpetrated the injuries, because both were involved. Each covered up for the other and failed to see that the children received proper medical care.
That was the background to the later child proceedings in relation to child C, child E and child F, and those are the proceedings that ultimately came to the Supreme Court as Re J. They took an extraordinary course, as my noble and learned friend Lady Butler-Sloss mentioned, in that the local authority, for reasons best known to itself for which it no doubt sincerely thought good, decided that the case should be tried solely on the fact that the mother had been a possible perpetrator of the fatal injuries to child A, without letting in any other facts at all. That was the remarkable feature of Re J, which was the subject of considerable adverse comment in the Court of Appeal, in which my noble and learned friend Lord Judge sat, together with Lord Justice McFarlane and another Lord Justice. That, I suggest, is what made Re J truly a rare case, although the sort of problem that it raised is, sadly, by no means rare.
As to what the Supreme Court decided, it is correct to say that the noble and learned Baroness, Lady Hale, said, in effect, that membership of a pool of possible perpetrators is not enough unless the judgment goes as far as to say that, on the balance of probability, this was the perpetrator. My noble and learned friend Lord Lloyd said that Lord Wilson disagreed. He did, but he went further. He said that not only is it not enough, it should not be taken into account at all. Lord Sumption agreed with Lord Wilson, so they both went further than the noble and learned Baroness, Lady Hale, in saying that membership of a pool is not enough. The other three members of the court indeed expressed the view that the law was over- complicated, a view that one can readily agree with, but, nevertheless, concurred without hesitation in the result.
Since the original case in 1995, in which the House of Lords in its judicial capacity was split 3:2—a case in which my noble and learned friend Lord Lloyd was a member of the Court—there have been five unanimous decisions by the House of Lords in its judicial capacity or the Supreme Court which have reached the conclusion that this is how Section 31 should be applied.
My noble friend Lady Deech said that the amendment would do no harm. I respectfully suggest that it would, at least in this respect. It would introduce the phrase “a real possibility”, which is the judicial gloss that has been put on “likelihood, looking to the future”, to describe something that lies not in the future but in the past. If I may say so, that is a very unlawyerly way to express oneself.
I apologise: I have gone on at much greater length than I intended. Those are my reasons—with huge respect to my noble and learned friend Lord Lloyd—for opposing the amendment.
My Lords, to add to a maelstrom of lawyers is not a particularly bright idea at this time in the afternoon, but I declare an interest as I was a member of the Court of Appeal that decided, when we decided it, the case of J. The case was brought to us so that the threshold test could be clarified: that was the only purpose of it. It was brought by a local authority, deliberately focusing on the single fact of possible perpetration and omitting any other consideration, so that the issue could go to the Supreme Court and that five previous decisions of the House of Lords could be analysed once more. We followed the previous decisions of the House of Lords and immediately gave leave for appeal to the Supreme Court—a very unusual step for the Court of Appeal to take—because it had to be addressed in that court.
Once it is established that an individual living in a household in which a child or children have been killed or seriously injured was one of the possible perpetrators of the injuries, but the evidence is not sufficiently clear for the court to identify who is actually responsible, where does that leave us? It leaves us with the possibility that the individual was, indeed, responsible for the death or those injuries or some of them. That seems to me to be a stark fact, but there is a further consideration. Often the ill treatment has been repeated; these awful occasions are not, generally speaking, a one-off. Generally, what you have is a series of repeated assaults on the child that culminate in an attack in which the child sustains fatal injuries. J was such a case. What that little baby had gone through in three weeks is beyond description.
Therefore, in many of these cases, although not all of them, the person who has not actually caused any injury has undoubtedly been aware of the fact that the child has been suffering. It is not just that the child cries—we all know that babies whinge and cry, some more than others—but this was a child with evidence on its little body of injury. Indeed, although these cases are largely confined to the family court, one needs to stand back and wonder why on earth criminal prosecutions under the Domestic Violence, Crime and Victims Act are not undertaken—not simply to establish who is guilty of the murder or manslaughter, but, where the evidence is uncertain, to demonstrate that both, on any view, are culpable in the sense that they have allowed the child to be bullied and abused in the way that has culminated in its death. If there had been a criminal prosecution and a conviction, it would not have occurred to anyone to say, “Oh well, that conviction is irrelevant to the threshold test that the family court has to ask in relation to another case”.
If there are combinations of events like those that have happened, it seems to me that they raise issues of great relevance to the threshold test in family proceedings. It is not a question of removing a child from a family on the basis of suspicion alone; it is that the threshold test should be allowed to be tested by reference to all the relevant evidence. If all the relevant evidence reveals that the threshold test should be passed, then you move on to care proceedings. For me, the idea that we should exclude from the threshold test possible relevant material is not how justice is done.
My Lords, I hope that I may be forgiven for adding one more lawyer’s speech to those which have already been given, and particularly that the noble Baroness, Lady Howarth, will forgive me for doing this. My reason for wanting to speak is that I presided over the case of In re J in the Supreme Court. I think that the noble and learned Lord, Lord Judge, expressed great concern that the issue was being brought before the courts on a hypothesis; I think I am right in saying that he said that it is not the business of the court to judge hypothetical cases. We took the view that we should decide the case on the material that we were given, but it is right to stress, as the noble and learned Baroness, Lady Hale, stressed, that the situation we were presented with was highly artificial in order to test one particular point: whether the “sole fact”, as it is put in the noble and learned Lord’s amendment, was enough to cross the threshold.
I do not want to add anything to the clear description which the noble and learned Lord, Lord Walker of Gestingthorpe, gave us as to what the case of In re J was all about, but I should like to say briefly why I join with the noble and learned Baroness in resisting the amendment. In my case, it is particularly on account of its wording, given the use of “sole fact” and the reference to “real possibility”. My objections can be summarised on three simple grounds: first, the amendment as it stands is wrong in principle; secondly, when you look at the structure of the statute it is unnecessary; and, thirdly, from the point of view of family life in circumstances that are quite likely to occur, it could indeed be damaging.
First, on the principle, I respectfully suggest that the golden rule is that a prediction of future harm has to be based on facts which have been proved on a balance of probabilities. It is only then that the state would be justified in removing a child from the family; in our democratic society, it is not enough that there should be suspicion. It has to be based on proof, so the state should be required to demonstrate that it has real and current concerns about the child’s safety before the child is taken into care. I appreciate that I am moving through all sorts of stages in making that proposition, but that is the background to the point I wish to make. I stress that if we look at the wording of Section 31(2) of the Children Act, which we do not have on the paper before us, when it states that a child may be taken into care only if,
“the child … is suffering, or is likely to suffer, significant harm”,
it is using the language of proof, not of possibility. That was a point made by Lord Nicholls some 18 years ago in the case of In re H.
As I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, accepted, the amendment has the effect of lowering the threshold to some degree. It assumes that the state cannot prove that the carer in question was the perpetrator—that all it can prove is that she was a possible perpetrator—and that that bald fact is all that can be done. Even allowing for the point at the end of the proposed amendment, that this is a “real possibility” and something that cannot sensibly be ignored, I suggest that we are still below the threshold which Section 31(2) sets.
Secondly, on necessity, it is important to appreciate that the noble and learned Baroness, Lady Hale, was not saying that the problem which the amendment is addressing is rare in itself. She was not saying, I think, that it is rare for two people in the situation in which the carer in this case was placed to blame each other, so that the court is unable to decide between the two. What she was saying was extremely rare was the situation which the court was being presented with: that this was the sole fact. As she put it in her judgment, the issue hardly ever comes before the court at the threshold stage packaged in that way. The point which she was making, and which one can see by studying the structure of the Children Act, is that in Part V, and in particular in Section 47, powers are available to the local authority to make inquiries and, if it is thwarted, to take further steps which may ultimately lead to an emergency protection order being applied for and so on, as the noble and learned Baroness, Lady Butler-Sloss, explained to us.
In the case of In re J, there was a difference of view as to whether the sole fact which has been referred to was relevant at all. In my judgment, I used the words “relevant” and “sufficient” to try to explain the difference of view. Lord Wilson and Lord Sumption said that it was not relevant at all; the rest of us said that the fact of the possible perpetration was relevant and could not be ignored, but it is not enough and is not sufficient to cross the threshold and therefore something more must be found.
The problem with the amendment is that it has absolutely no context attached to it. The sole possibilities are stated in the amendment in the starkest possible terms. However, as soon as you start to examine a particular case—as the noble and learned Lord, Lord Judge, did when he talked about the number of injuries inflicted in that tragic period of three weeks—you are adding something that is not in the amendment. Indeed, the noble and learned Lord, Lord Lloyd, said that the amendment is dealing with the situation of two possible perpetrators only, but it does not actually say that. It just says “a possible perpetrator”. As soon as you begin to make inquiries and search around, you are going to add things in which begin to build up a context which the social worker will be able to put together before the threshold stage has to be crossed when the case is brought into court. My objection to the amendment is really that: that it does not give you any context at all. Surely, that is taking the matter too far.
The third and final point is the risk of damage. Let us contemplate a situation which is not far removed from the situation of In re J, where the woman—and let us take the woman because it was the woman in In re J—is living in an abusive relationship. That was indeed the case here because she had separated from the previous partner because he was violent to her repeatedly and eventually she left him. All sorts of reasons can be imagined why she did not blame him. She may have been under pressure from him. She decides to create a new life for herself, as indeed she was doing in In re J, making a relationship with somebody who is absolutely blameless, who has children of his own already. There she is, now in family with him with a further child of their own.
My concern is that, if the amendment is passed in its stark form, it holds a threat over that relationship from the very beginning. There must be a question about, “Is it wise for me to enter into this relationship? Am I always going to be at risk of being before the court for a full threshold inquiry, simply because of what happened in the past?” The amendment pays no regard to the length of time that may have elapsed between the incident when the perpetration occurred and the moment at which the inquiry is being initiated. Without elaborating further, it is the starkness of the amendment, which lowers the threshold, that is a cause for real concern.
I wrote to the noble and learned Lord, Lord Lloyd, with a suggestion about how one might approach the problem—because I do appreciate that there is a problem—by suggesting that, without using the word “sole”, one might be able to reassure social workers that this factor is relevant, which I believe firmly would be the case. If an amendment were to be framed which made that point and put it beyond doubt, then I would be entirely happy and I hope very much that it would reassure social workers. However, the amendment as phrased goes far too far and is too stark and for that reason I support the noble and learned Baroness, Lady Butler-Sloss, in resisting the amendment.
My Lords, I, too, oppose the amendment. I am glad that the noble and learned Lord, Lord Hope, has mentioned the difficulty where there is background of abuse against the mother of the child. I have been involved in cases where that has been the situation. That can often be the reason why a woman at trial does not testify, or at the police station does not give an account, of what has happened at the hands of her abusive partner who has also abused her child.
I was glad to hear the discussion that has just taken place, but my concern is the narrowness of the drafting. Before any judgment was made, I would want to be sure that one was able to explore the context and the situation that the mother was in at the time. Very often, battered women are frozen into a situation where they do not act to protect their child, and we should be very careful about not letting someone have a chance to make a new life with a new partner in very different circumstances where they would be perfectly good as a parent.
I certainly had not intended to take part in this debate, which has been at a very exalted level. However, the speech from the noble and learned Lord, Lord Hope, reminded me of another point that has not been touched upon. If one reads the amendment as it is worded, one has the impression that the test should very probably be on the balance of probability. The noble and learned Lord, Lord Hope, referred to the judgment by Lord Nicholls in Re H 18 years ago. The judgment as I remember it, and correct me if I am wrong, was to this effect: normally the test will be on a balance of probability—less or more likely. However—I believe that these were his words—the more serious the accusation, the more cogent must be the evidence to establish that accusation. If I am right about that, and I believe that I am, it means that this amendment would undermine that principle in Re H completely.
My Lords, this has been a very long debate and I do not intend to extend it much longer, but I want to join the noble Baroness, Lady Howarth, as another non-lawyer in redressing the balance slightly. I have listened very carefully to all the excellent contributions. I say at the outset to the Minister that this situation presents a challenge to the Government and I hope that they will rise to it constructively; I am sure that he will try to do so.
We have heard from people across the House today, all of whom are very experienced in one way or another and absolutely committed to the welfare of children, yet this is a highly contested issue with at least three separate points of view being expressed during the course of today’s debate: those who think that there is an issue to be addressed and that the amendment from the noble and learned Lord, Lord Lloyd, attempts to address it; those who do not believe that there is an issue to be addressed; and those who believe that there may be an issue but this amendment is not the way to do it. I think there is an issue but, although we will wait to see how the noble and learned Lord sums up, I do not think it is one that the House could resolve by amendment to this Bill. However, I hope that the Minister, having heard the debate tonight, will be prepared to examine it further before Third Reading and come back with some proposal to try to reach a resolution.
It is clear from the debate that there has been a change in the way in which courts, rather than social workers, can apply the Children Act. That change was as a result of the intervention of the noble and learned Baroness, Lady Hale. In those situations where a child is living with someone who is a possible perpetrator of proven abuse to another child, whereas previously the court could have said, “That’s enough, that’s the threshold; we will now consider the welfare issues”, the noble and learned Baroness has said, “No, that is not enough”. Now the court cannot even consider the welfare issues to the child in the round. That is the crucial change.
I will not go through the arguments that have been put forward, but I shall just make one or two comments. The noble and learned Baroness, Lady Butler-Sloss, for whom I have the most enormous respect, said that there ought not to be the possibility of court intervention on the basis of suspicion. Normally that would be right, but the problem in this case is that it is not just suspicion; there is a proven fact of harm or death to a previous child by one or other, or more, of the parties. The difficulty is that we do not know which one.
The noble and learned Lord, Lord Walker, said that it is a terrible thing if a child is removed from its home on unfounded evidence. Yes, it is, but it is also a terrible thing if we learn only with hindsight that that child was actually living with someone who was the perpetrator and who was a danger to that child and injured or killed that child. Those are the very difficult judgments. I feel that, faced with that very difficult situation, I would be more comfortable—I am entirely with the noble and learned Lord, Lord Judge, on this—if a court were considering those issues rather than it having to say, “No, we can’t look at it, because we’re not allowed to any longer because the threshold can’t be met and that is the current ruling”. That is a great concern. As I say, I hope that the Minister will rise to the fact that we have a hotly contested issue on a very serious matter on which people whom we respect across the piece have come to different judgments. This needs to be resolved, and I hope that the Minister will set out a pathway by which that can be achieved.
My Lords, I will certainly try to rise to the challenge. It would be a lot easier to rise to if the Titans who have clashed today had come to anything like a conclusive agreement about how it should be met. I have never been one to think that Parliament should never challenge the views of our courts, or vice versa. I have said before that I think a little friction between the two is sometimes quite useful. On the other hand, we have a separation of powers where we entrust our learned judges with making wise decisions.
I am therefore a little tremulous about suggesting that we accept an amendment that, if the noble and learned Lord, Lord Walker, is to be believed, and I am sure he is, flies in the face of six separate judgments by either the House of Lords in the old days or the Supreme Court. We have to think very hard before we pass an amendment that would challenge those judgments. If the case that has cast the matter into doubt was an artificial case aimed at clarifying the law—I have to say that the words you usually use are, “With the utmost respect”—it did not work.
I cannot make commitments to the noble Baroness, Lady Hughes, that we can solve this between now and Third Reading. Of course I shall take back the debate that we have had and the considerable arguments that have been made. It would be impertinent of me to try to encapsulate those; those who have been in the debate have heard cogent arguments on both sides.
All of us, whether we have had these responsibilities or are just ordinary citizens, know that when these things go wrong and a child is murdered, the media pack descends on, usually, a social worker and the consequences are extremely grave. On the other hand, as we also know, voices are raised saying that we are too casual in our willingness to take children into care. Accusations have been made at the other end of the corridor that local authorities can be cavalier. I fully take the point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Hope, that if you are going to take a child from its family you must have proof as well as suspicion.
These are very weighty matters. I put it to—I was going to say “my noble friend” but he is more like the constant thorn in my side—the noble and learned Lord, Lord Lloyd, that today would not be the day to test the opinion of the House. If he were to do so, I would ask the House, in all sense of responsibility, to vote against him.
The Government believe that Section 31 is robust enough. The point was made that it is not a threshold for social workers to make child protection interventions. That has been made very clear. The rarity of the case was dismissed. The noble and learned Baroness, Lady Hale, rightly said that so artificial a case on such a single issue is the rarity. That is where some of the confusion has arisen.
We have had some very strong arguments. In the light of the very full debate held in Committee, we have discussed this further with the chief social worker, the Association of Directors of Children’s Services and the College of Social Work, and they have all confirmed that they do not support this amendment.
If the noble and learned Lord, Lord Lloyd, does not press the amendment, I do not want to inflict another debate like this on the House at Third Reading. I do not think it would do a service to the House or be the way to make a very important law. This will have to stand for a very long time. If there are initiatives or suggestions that can get some unanimity across the Chamber—and, perhaps even more helpfully, on the Cross Benches—there may still be some time for movement, but as it stands now, and in the light of the advice that the noble and learned Lord, Lord Walker, gave us in a considered and thoughtful speech that Section 31 has stood the test of time and has been examined six times during that period, it would be impetuous of this House to back the amendment moved by the noble and learned Lord, Lord Lloyd, this evening. If he wishes to press it, I will urge the House, with the proper sense of responsibility, to reject it.
My Lords, I am very grateful for the Minister’s careful response to this amendment. I am also very grateful to all those who have spoken in support of it. Of course, I am also very aware of those who have spoken against it. Even if I had thought that we would win tonight, I would not want to divide the House. It would be highly irresponsible to make a snap decision on such an important and difficult area as child protection.
The one thing that the debate has established beyond any doubt is that there is a problem here that needs to be solved urgently. As I have said from the very start of this amendment, this should be a non-party matter. It is purely a matter of law reform. That is why I was so very glad to hear the noble Baroness, Lady Hughes, suggest in her excellent speech that there is an opportunity between now and Third Reading to hold some sort of discussions on an all-party basis to see whether there is some way in which we can find a way forward which would satisfy all the lawyers here as well as the public at large. If we can find such a way forward, that would be by far the best solution. If we cannot, I respectfully suggest to the Minister that this is a case for a reference to the Law Commission for an urgent hearing about what is best to be done in this situation.
As I said before, I am worried. We have very strict rules about bringing matters back at Third Reading, and I do not want to lure the noble and learned Lord into thinking that by withdrawing he can be guaranteed a Third Reading debate. On the other hand, the point he has just made may be a way forward on this. I do not know. I swear I have never said this before across the Dispatch Box, but I am not a lawyer. If the lawyers can help us in this, we will consult, but I do not want to inflict on the House a Third Reading debate of this complexity, which would not be very popular with the House.
I fully understand and accept the position which the Minister has taken. It would be admirable if we could organise some sort of cross-party discussion, perhaps with outside assistance. Lawyers need assistance from social workers to find out the best way of finding a solution. If we can find one before Third Reading, so much the better; if not, then clearly it ought to go to the Law Commission for a quick hearing. I beg leave to withdraw the amendment.
Amendment 16 withdrawn.
Clause 19: Local authority functions: supporting and involving children and young people
16A: Clause 19, page 19, line 20, at end insert—
“( ) the need to continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children.”
My Lords, we now come to Part 3. I shall move Amendment 16A, and speak briefly in support of Amendment 34A in the name of the noble Baroness, Lady Howe.
In 1978, the noble Baroness, Lady Warnock, described inclusion, or integration, as it was known at that time, as,
“the central contemporary issue in special education”.
It has not lost much of its salience in the time that has elapsed since then. It refers to the opportunity, or even the right, for disabled children to be educated in mainstream schools alongside their non-disabled peers as an expression of their right to take their place in the community as fully equal members of that community. It is a right that many disabled people feel has been too long denied and which is accordingly all the more highly prized, especially by many parents so far as the education of their disabled children is concerned.
The right to inclusive education is contained in Article 24 of the UN Convention on the Rights of Persons with Disabilities, which the UK ratified in 2009. In relation to the right to education, states are also under an obligation to take measures to achieve the progressive realisation of the right. When the UK ratified the convention, it entered a reservation and interpretative declaration to the right to inclusive education, but the terms of its declaration made clear that the UK accepted the obligation of the progressive realisation of the right to inclusive education.
This amendment was recommended by the Joint Committee on Human Rights to place the principle of inclusion in the Bill among the general principles set out in Clause 19, in line with the rights contained in the UN convention and in terms which closely follow the language of the UK’s interpretive declaration.
In Grand Committee, the Minister outlined steps which the Government were taking to promote the principle of inclusion, which he considered made it unnecessary to amend Clause 19. He referred to duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to plan to increase access over time and to make reasonable adjustments to policies and practices. For the most part, however, the measures he referred to were what I might call “soft measures”, such as continuous professional development of staff and development of expertise in supporting children with SEN. He also relied on the fact that guidance on inclusion would be given in the SEN code of practice.
Why should one want to go further than this? There are six reasons. First, the code of practice, the latest draft of which was issued on 4 October, is very much watered down compared with the existing guidance. In particular, it contains many fewer of the sorts of examples and scenarios which help to bring the principle of inclusion to life for people who need guidance in how to implement it. We need something like the JCHR’s principle in the Bill as a necessary peg on which to hang stronger guidance. Secondly, the principle of inclusion continues to be the subject of considerable litigation. This suggests that the current state of the law and guidance leaves considerable scope for uncertainty. Putting the JCHR’s general principle in the Bill would help to remove this uncertainty and clarify the law and relevant guidance. Thirdly, the JCHR has recommended our amendment. Fourthly, it is in line with the obligations to which the UK has signed up under the UN convention. Fifthly, as I have said, the language of the amendment closely follows that of the UK’s own interpretive declaration, so should hardly be uncongenial to the Government.
Sixthly, there is otherwise nothing about inclusion in the Bill, notwithstanding that inclusion remains one of the central contemporary issues in special education, as I have said. The Minister will point out that Clauses 33 and 34 effectively contain rights to inclusion, but—and this is the most important point—these are rights to inclusion for the individual child. We need a general principle in the Bill in the terms of this amendment which gives local authorities an obligation to,
“continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children”.
We need an obligation of this sort in the Bill and one which lays the obligation on local authorities to take a strategic overview of the provision in their area and plan for its strategic development in line with the principles of inclusion, and in a way which enables that principle to be progressively realised. Without this, we continue to encounter the problem of children being rejected by individual schools which do not have the facilities—because the legislation is drawn in such a way that they can do that—because the authority has failed to take a strategic overview and ensure that there are schools in their area which have the requisite facilities.
There is one general point. I see that people might worry that an amendment in these terms, which speaks of the progressive development of an inclusive system, with increasing access to mainstream schools, might tend to exclude the possibility of education in special schools for those who want it. That is not my intention at all. I am in favour of what I call a mixed economy of provision. There is nothing in this amendment which would take away the right of a parent to opt for a special-school placement if they want to. This is enshrined in the legislation. Under the law as it stands, which is retained in this Bill, no one can be compelled to send their child to a mainstream school who does not want to.
I will just say a word about Amendment 34A. My Amendment 16A covers the importance of developing an inclusive system in which disabled children and young people are increasingly welcomed by mainstream schools with the right skills to support them. The general presumption in favour of mainstream education is maintained in Clause 33. That is why it is disappointing that the potential for special academies to admit children with SEN without an education, health and care assessment and plan is included in Clause 34(9). The fact that academies are brought within the SEN framework by this Bill is very welcome, but the inclusion of Clause 34(9) seems oddly at variance with this approach. As I said at Grand Committee, this clause undermines a long-standing consensus that children and young people should be placed in special schools only where this has been identified as the most appropriate placement, following a statutory assessment and decision-making process which takes full account of the wishes of the parent.
Draft regulations under Clause 34 allow a child or young person to be placed in a special school without an EHC assessment and plan on an indefinite basis, provided that the placement is reviewed termly. Some parents may welcome this power because of the potential to give swifter access to a special-school place. Without a full assessment and decision-making process, however, there is a high risk of inappropriate placement. This new power to place children in special schools outside the rigour of a statutory assessment and decision-making process risks a return to a time when parents could be pushed into accepting a special-school place for their child, not because it is the best placement for them but because the mainstream school had not, for whatever reason, provided the appropriate support. In fact, it would take us back to the situation which obtained before 1999.
I support the noble Baroness, Lady Howe, in proposing that this subsection be removed and, in so doing, I beg to move Amendment 16A.
My Lords, my amendment, which I am pleased to hear the noble Lord, Lord Low, is also supporting, is very much along the lines of the discussion we all had in Committee. Currently, as we know, any child who has special educational needs but does not have a statement must be educated in a mainstream school. There are no exceptions to this duty, which helps to ensure that children and young people are not inappropriately placed in special schools.
Under both the old and the new regulations, a child can attend a special school on an assessment place. Despite some sympathetic comments by the Minister in Grand Committee, the Government’s proposals will still potentially allow special academies, including free schools, to admit children or young people permanently into school without their having had their special needs statutorily assessed, or an education, health and care plan put in place for them.
Illustrative regulations accompanying Clause 34 —Regulation 2(2)—will also allow children without an EHC plan to be placed in any special school on an ongoing basis provided the situation is reviewed annually. Although the Minister stressed that the support of professional advice would be needed, I fear that not enough safeguards will be in place to stop children or young people being admitted without their needs being fully assessed and agreed by a range of professionals with the child or young person and his or her parents.
This proposal bypasses the careful consideration of a child’s needs through an EHC assessment which brings together a range of information and advice, including parents’ views, children’s views and advice from professionals with expertise in relevant areas of SEN, including those nominated by the parent or young person. The proposal would seem to undermine the principle that mainstream schools must be enabled to make provision for all children without a statement/EHC plan and for most children with a statement/EHC plan.
Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request, and with the support of professional advice such as a report from an educational psychologist, I am concerned that there will be no formal role for the local authority in this process. I fear that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young people with an EHC plan, extremely difficult.
The draft SEN code of practice confirms that an educational psychologist on their own might support the placement of a child or young person in a special academy. However, it is unlikely that an EP on their own would be happy to advise in this way; their advice would normally sit alongside advice from others who also have specialist knowledge in the relevant area of SEN.
This proposal contradicts the Government’s stated commitment to apply the SEN framework equally to maintained schools and academies. It also bypasses the decision-making process built into an EHC plan which gives parents a right to request the school at which they would like to have their child’s needs met, and a right of appeal against the decision of the local authority.
If this proposal were enacted, there would be a danger of mainstream schools being incentivised to persuade parents that their child would be “better off” in a special school just because they did not want them in their school, and a child or young person could be moved into special education without their needs and interests being safeguarded by having an EHC plan in place. This would take us back to the situation that prevailed before the Education Act 1981 was introduced. There is also a high risk of head teachers deciding the placement of children with SEN, with parents persuaded of the benefit because otherwise their child might potentially be excluded.
Special schools admitting a child value and use all the information from an assessment and statement to assure themselves that the child has the type of need for which they are designated. However, this proposal would not ensure that this would continue. It would seem contrary to the Government’s new way of assessing, and commitment to meet, the needs of all children and young people with SEN.
There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this provision remains, I would question the point of having mainstream places within a special school.
I fear that the proposal would result in medical labels determining whether a child would secure a place in a special academy. If a special academy has been set up for a particular type of SEN, will it result in an influx of children having been diagnosed with that condition? How can the Government ensure that a framework process is in place so that inappropriate placements do not occur?
There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would EPs’ views be protected and advocated? How would places be allocated within school-year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan places? The policy also begs the key question of what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they were making adequate progress?
I understand the Government’s position, which the Minister set out in Grand Committee, that the views of the parent should be the determining factor in what school a child attends. However, there need to be stricter and clearer protocols for what steps the parents must follow in such instances to protect both them and the child or young person from the risk of receiving misinformation. Regulations should also state that, on making this decision, parents must have ready access to specialist advice that may fully explain both the potential beneficial and negative outcomes of any such decision for the child or young person. I look forward to hearing what the Minister has to say.
My Lords, I have added my name to the amendment of my noble friend Lord Low for reasons that I think are a worry for everybody who is concerned with Part 3 of the Bill; namely, the lack of clarity as to how children who do not get an EHC plan will be placed, and the processes by which they are placed. This must be a worry for parents with moderately disabled children as well as for people who are concerned with the clarity—as we hope—of the legislation.
I am not a wholehearted, ideological supporter of inclusion for all children. I think that special schools are enormously important, and there was a time when it looked as though we were going to have specialist special schools, beacon special schools and special schools whose expertise would flow over into mainstream schools much more readily than it does at present. Therefore, I am by no means concerned to uphold a view that would end with all children with disabilities being educated in the mainstream. In some cases, it is very difficult to ensure that children with disabilities do not interrupt or destroy the possibility of the education of other children in the school—this, of course, goes particularly for children with behavioural and emotional difficulties.
The Bill needs to be much clearer on how children will be placed within their local authority area if they do not have a plan made out especially for them—I think that that is still a matter of lack of clarity. Parents find it very difficult to make the decisions and choices that the Bill very properly emphasises, because of the difficulty of access to exactly what the ordinary, mainstream school will be able to offer their child. I know that a large number of parents want mainstream education for their children whatever their disabilities, whether they are going to get the best possible education and the best possible chances or not—it is a fixed belief that it is a right for a child to be educated in the mainstream and for parents to make that demand.
Parents who are genuinely interested in finding the right school for their child who has a disability, but may not be severely disabled or have a complex disability that speaks for itself, need the means to make a properly informed choice. That is why I like the wording of my noble friend’s amendment—although I find the grammar rather difficult—and why I strongly support it.
My Lords, I speak in strong support of the amendment of the noble Lord, Lord Low, which is set out so comprehensively and to which I added my name. If accepted, it will reassure those of us who are concerned that elements of Part 3 of the Bill could weaken the right of disabled children and young people with SEN to be included in mainstream education. Sadly, the noble Baroness, Lady Campbell of Surbiton, is not able to be in her place today because, like many people, she has a bad cold. But many noble Lords will have heard her give eloquent testimony of the blight that her segregated education laid on her life. It was not necessary, and it is something that has never left her.
It would be welcome if the amendment were further strengthened by extending the duty to post-16 providers, to ensure consistency for disabled learners across the educational experience. Local authorities such as Nottingham, Calderdale and Newham have used such duties to good effect. They have provided specialist support services and training for mainstream schools so that those schools are confident in implementing inclusive educational practice. This has increased the number of disabled children and young people with a wide range of impairments and health conditions being included in mainstream education. But while some local authorities have been proactive in promoting inclusive education at a strategic level, a lot of work still needs to be done to support the development of inclusive education across the country, especially when half of our disabled children and young people with SEN are still being placed in segregated educational provision.
I am very concerned that without an explicit duty, local authorities will become complacent—and, more worryingly, will revert to the practice of investing increasingly limited resources in existing segregated, rather than inclusive, educational provision. For instance, Kent County Council is already investing heavily in special school provision. Nigel Utton, a Kent County Council primary school head teacher and the chair of Heading for Inclusion, is quoted as saying:
“About half the children with statements in Kent are in special schools, with so much resource being targeted at special provision (not to mention the huge transport costs incurred) mainstream schools are left with a very small proportion of the special needs budget. The pressure on mainstream schools to achieve high academic standards, combined with budgetary pressures, is forcing many to not accept children with SEND statements or to persuade parents to leave”.
Such investment in special schools is not compatible with the Government’s Article 24 obligations. One such obligation is to develop and promote inclusive education across the country by building the capacity of mainstream schools to support the inclusion of disabled learners. The situation will only worsen if the Bill, and the draft SEN code of practice, do not include the explicit duty to promote inclusive education practice. I urge noble Lords to support the amendment.
My Lords, I am glad to be able to follow my noble friend, who has made a powerful case. As a member of the Joint Committee on Human Rights, I simply want to put on record my thanks to the noble Lord, Lord Low, for taking the committee’s recommendation forward and for making the case for it so cogently. The committee saw this as a matter of principle. It is a principle that the Government do not disagree with, and I am at a loss as to why they have been so resistant to accepting that it should be in the legislation. I hope that the Minister will think again.
My Lords, I support the amendments, because inclusion, which we all want to promote, still has to be fought for. That is why it ought to be in the Bill. I was on the boards of several special schools where some children were, I have to say, “parked”. On the other hand, I noticed the beneficial effects of children with disabilities being accommodated in mainstream schools—not only on the child in question but on the other children, who then have the opportunity to learn how to behave towards them, which they take. Children do not always bully other children with disabilities; in a good mainstream school they will have an incentive not to. The duty should be explicit, so it ought to be in the Bill.
My Lords, I shall briefly, but strongly, support both amendments. On Amendment 34A, the noble Baroness, Lady Howe, has fully explained her concerns, which I share, about the possible consequences of allowing specialist SEN academies to admit children without an ECH plan. That seems to run counter to the principle of inclusion and it also seems dangerous to admit children without that comprehensive assessment of their specific needs. I hope that the Minister will respond positively to that point.
When the noble Lord, Lord Low, moved Amendment 16A in Committee, he rightly said that although the code of practice had improved guidance on inclusion, in the Bill as it stands, inclusion is not referred to anywhere. Given the commitment of the Government and of noble Lords across this House to increase access to mainstream schools and to act in accordance with the recommendations of the JCHR, it seems very odd that this overarching principle is not enshrined in the legislation.
The purpose of the amendment is to insert that general principle alongside other general principles that are included in the Bill. As the noble Baroness, Lady Warnock, has said, this is not about pushing inclusion above everything else; it is about parental choice. At the moment, because local authorities and schools have not moved far enough towards making mainstream schools accessible to disabled children, many children are denied that choice.
Clause 19 sets out other key principles to which local authorities must have regard in fulfilling their obligations under Part 3: the wishes and feelings of children and their parents; the importance of child and family participation in decisions; providing adequate information; and supporting the child’s development and educational progress. Those are all very important. But equally important, I would argue, is the principle that local authorities should seek to maximise the opportunities for inclusion.
As the noble Lord, Lord Low, told us, when the Minister was arguing against the amendment in Committee, he said that the Bill maintained the general principle of inclusion in a number of other provisions and went on to list some of them. He also said that schools and colleges had important duties under the Equality Act and he told us about other measures that the Government were adopting to help mainstream schools improve their ability to include disabled children more effectively. However, he did not tell us why the Government would not accept this amendment alongside the other general principles that appear on the face of the Bill. If the Minister is not minded to accept the amendment today, I hope that he will not rehearse that information as we have already heard it and it is on the record. What we really want to know is why he will not accept the general principle of inclusion sitting alongside the other principles in Clause 19. That would send a strong signal to all educational settings, and to local authorities, that they must up their game and move closer and faster to being able to offer places to disabled children. That would catalyse a very positive and marked shift. I hope that the Minister will accept the amendment today.
I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Warnock and Lady Wilkins, for tabling Amendment 16A, and the noble Baroness, Lady Howe, for tabling Amendment 34A. I had an extremely helpful meeting with the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, recently, and I am grateful to them for helping me to understand these issues. As noble Lords know, they are, of course, immensely knowledgeable on this matter. They have spoken eloquently about an issue that I know is important to many in this House—inclusive provision for children and young people who have SEN or are disabled. We have had an informed and passionate debate.
Amendment 16A picks up a recommendation from the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, a member of the committee, mentioned. The Joint Committee welcomed the Bill as containing,
“a number of provisions which … enhance the UK’s implementation of some of the relevant rights of children and young people”.
Those include the general principles in Clause 19; the extension of education, health and care plans to young people up to 25; the requirement for academies to be covered directly by the statutory framework for SEN; the duty to provide SEN information to children and young people; the measures to ease transition from children’s to adult services; the explicit reference to assist in preparation for independent living in a local offer; and the provision of direct rights of appeal for young people and the proposed piloting of children’s rights of appeal. However, the Joint Committee felt that including a principle on inclusive provision in Clause 19 would demonstrate the Government’s commitment, under the UN Convention on the Rights of Persons with Disabilities, to the progressive realisation of the right to inclusive education.
I make it clear at the outset that the Government are fulfilling their commitments under the UN convention. The Bill maintains the general principle of inclusion and does so through some of its key provisions. It places duties on schools and colleges to use their best endeavours to ensure that those with SEN get the support they need and holds a presumption for inclusion in relation to choice of schools and colleges through Clause 33. However, it also recognises that children and young people have different needs and different preferences for where they wish to be educated, including specialist settings such as special schools and independent specialist colleges. That is entirely consistent with the reservation and interpretative declaration that the Government made to Article 24 of the UN convention recognising special schools as part of the general schools system.
Beyond the Bill, as we have discussed in previous debates, local authorities, schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to increase access over time and to make reasonable adjustments to their policies and practices. Indeed, it was this Government, in 2012, who included schools in the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty under the Equality Act. I made a commitment in Grand Committee to look at the scope for improving the links to the Equality Act duties in the SEN code of practice and I am happy to reaffirm that commitment now.
We have previously discussed the inclusive schooling guidance. One of the striking findings in the responses to the Green Paper Support and Aspiration was that nearly half of those who responded to a question about the guidance did not know that it existed. That is why we put the key elements of it into the code of practice. I am happy to consider how the code of practice can be further improved in that regard. In view of all that, we do not believe that it is necessary to add to the principles in Clause 19 to fulfil our commitments under the UN convention. The principles in Clause 19 are designed to underpin the key features of the reforms, placing the views, wishes and feelings of children, young people and parents at the heart of the system and placing a focus on improving outcomes. They apply irrespective of where children and young people are educated.
We have heard in other debates about the important role that specialist provision plays in supporting disabled children and young people and those with SEN. The noble Lord, Lord Low, referred to the importance to parents of having that choice. Amendment 16A could run the risk of being perceived as a threat to specialist provision and as encouragement to local authorities not to place children and young people in specialist provision where that is appropriate for meeting their needs and where parents wish it, and could threaten the viability of high-quality provision for children and young people with SEN. I know that that is not in any way the purpose of the amendment, but it is an example of the kind of balance of arguments that we have to weigh.
The Government take very seriously their commitment to the convention. In addition to the provisions in the Bill and the government amendments on disabled children and young people that we will be debating later, we have taken a number of practical steps to build the capacity of mainstream schools and colleges to support children and young people who have SEN or are disabled. I spoke about these in Grand Committee. The noble Lord, Lord Low, referred to them as “soft measures”, but I would not describe them as such. They are certainly extensive. I will not go through them in detail, because I know that noble Lords have heard this before. However, we have invested considerable sums of money in training: there are over 10,000 new SEN co-ordinators, a number of schemes to develop the training of SEN, we have made grants to the Institute of Education, and we are involved in many other projects.
Chapter 6 of the draft SEN code of practice provides strong guidance to all mainstream early-years settings, schools and colleges to ensure they have high expectations for all pupils and students, provide high-quality teaching, have clear systems for identifying those who need additional support and provide that support as quickly as possible. We make it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and we recognise the key role played by the SEN co-ordinator in this and in other ways. In addition, as noble Lords know, the Bill now includes a new clause on supporting children with health conditions. Noble Lords will see that a number of government amendments have now been tabled to include disabled children and young people with SEN in the scope of a number of key provisions in the Bill. I will speak about those amendments shortly.
On Amendment 34A, tabled by the noble Baroness, Lady Howe, I understand her concerns and those of other noble Lords about the provisions in Clause 34(9), but I hope to reassure them. Clause 34(9) would enable a child or young person with special educational needs but without an EHC plan to be admitted to an individual special academy or special post-16 academy whose academy arrangements permit this. The admission of children or young people without EHC plans to special academies or special post-16 academies would be limited to those academies where the Secretary of State for Education had specifically agreed to permit that in the funding agreement in relation to specific types of children.
I reiterate what I said when we debated this issue in Committee. This is not a blanket policy and it is also definitely not part of any dark plan. On the contrary, the Government’s intention is to facilitate innovative new approaches and provision for the benefit of children and young people with SEN. The Secretary of State would look carefully at the detail of any proposal made by a special academy or special post-16 academy and would consider its educational merits and viability. Indeed, we have approved 16 free special schools. All are able, as things stand, to apply to the Secretary of State to have the competence within their funding agreements to admit non-statemented pupils. That is the status quo. Only one has so applied. They were approved to admit, on a temporary basis only, children with autistic spectrum disorder or with specific communication and language difficulties, but as far as we know none has been so admitted.
Concerns have been expressed by the noble Lord, Lord Low, the noble Baroness, Lady Howe, and others that children and young people might be forced into special provision and parents coerced by local authorities into placing their children in special schools. We will ensure safeguards against that are in place. First, the relevant academy’s funding agreement must stipulate that the special academy or special post-16 academy could admit only children or young people without plans who had a particular type of SEN set out in the agreement. Changes that suggested reducing the number of places for children with statements to enable the admission of children without statements would not be approved unless the case was supported by the local authority and by parents, and a lack of demand for statemented places could be demonstrated. Secondly, such a child or young person would be admitted to the academy only if their parents or the young person had applied to go to it. Thirdly, the child or young person should have those particular needs and their admission should be supported by a relevant professional opinion, such as that of an educational psychologist. Of course, parents of young people will continue to have the right to ask for a statutory assessment of their child’s needs to be undertaken and a right of appeal to the tribunal if the local authority decides not to carry one out. The academy would also have to adopt fair practices for such admissions in line with the principles of the school admission code. We would take very seriously indeed any instances where these freedoms were being abused. Very significantly, the new secondary accountability, the best eight progress measures, will become the main measure by which we assess the performance of all maintained schools and academies. This new approach will strip away the previous perverse incentives and will hold schools to account for the progress made by all their pupils, not just blunt measures of absolute attainment at grade C. This will move schools that have focused too much on those pupils who can achieve a C grade to focus on the progress of all their pupils and should particularly benefit SEN pupils in those schools.
There can be no greater demonstration of the Government’s commitment to reducing exclusion than our school exclusion trial, a very hard measure, taking place in 11 local authorities with approximately 180 schools participating. This is aimed at schools taking more responsibility for pupils at risk of exclusion and ranges from schools committing to avoid any permanent exclusion, as in Darlington, Hartlepool, Redcar and Cleveland, to, in Wiltshire, the responsibility for permanently excluded children transferring from the local authority to the school.
Clause 34(9) is designed to improve provision for those without plans and reflects the Government’s general desire to encourage innovation and promote greater choice and flexibility in their free schools and academies programme. We will make sure that it contributes to that improvement and that the above safeguards are in place to address the concerns expressed by noble Lords.
I fully understand the objectives of the amendment. I hope I have been able to persuade noble Lords of the Government’s commitment to improving education provision for all children and young people and specifically to fulfilling their obligations under the UN Convention on the Rights of Persons with Disabilities and of the case for keeping the principles in Clause 19 as they are. I hope, too, that I have been able to reassure noble Lords that the provision in Clause 34(9) is there to encourage innovation and promote greater choice and flexibility for the benefit of children and young people with SEN, and that the safeguards we have put in place will guard against any potential problems envisaged. In view of these assurances and the commitment I have given in relation to strengthening the guidance in the code of practice, I urge the noble Lord, Lord Low, to withdraw the amendment.
My Lords, I thank all those who have spoken. They all spoke in support of my amendment except of course the Minister. I thank the Minister for his full response. However, I have to say that I am not entirely persuaded by it. It was not a real advance on what we heard from the Minister in Grand Committee. In moving the amendment I think I showed that that was inadequate and that we still needed the amendment.
As I heard him, he has not said anything very different in substance today. He said that children have a variety of different special educational needs. That is right. These include a need for special school placement. In moving the amendment, I went out of my way to make it clear that nothing in the amendment is inimical to special school placement. The amendment follows the language of the Government’s own interpretative declaration when they entered their reservation to the UN convention. Therefore, there should not really be anything in the amendment that would be difficult for the Government to swallow.
Like the noble Baroness, Lady Lister, I do not see what is causing the Government so much difficulty about this. But I want to make it clear that I do not feel embattled. I moved the amendment not in a spirit of ideological embattlement or to provide a further chapter in the history of passionate and sometimes bitter arguments between adherents of inclusive and special education. I see it as much more a matter of good legislative housekeeping, in which we get the appropriate principles on the face of the Bill to drive their amplification in secondary legislation and guidance. As I have made clear, the code of practice as so far drafted, although a considerable improvement on the outline draft which was initially circulated, is still woefully defective compared with the guidance on inclusion which we have at present. The code, as so far drafted, is a real step backwards in this area. I feel very strongly, not as a matter of special education ideology, but as a matter of legislative housekeeping, that we need something like this amendment on the face of the Bill in order to drive the major strengthening of the code of practice on inclusion which is required. In that quite moderate and not embattled spirit, I nevertheless wish to test the opinion of the House.
17: After Clause 19, insert the following new Clause—
“Children and young people with special educational needs
For the purposes of sections 22, 24, 25, 26, 27, 30, 32 and 62 of this Act, the term “children and young people with special educational needs” will be interpreted to include children and young people with a disability under the Equality Act 2010.”
My Lords, Amendment 17 would, for the purposes of Sections 22, 24, 25, 26, 27, 30, 32 and 62 of Part 3, include children with a disability under the Equality Act. It would interpret children and young people with SEN to include children and young people with a disability as well. The Government have tabled a number of amendments, I think, to achieve the same thing.
I will be very brief as this is not now contentious, given that the Government have moved on the issue, but my amendment would ensure that key clauses that relate to identifying children with needs, duties of the health authority, joint commissioning arrangements, the duty to keep provision under review, the local offer, advice and information for parents and so on would all now apply equally to disabled children without a special educational need under the terms of the Equality Act. This is important, not only in principle, but also in its practical effects, particularly for the local offer, which we will debate later on Report. The local offer is particularly important for children with a disability but without a special educational need because that is now to be the only way in which they can get services that they and their families need. It is very important for the local offer, particularly Clause 26 on the joint commissioning arrangements between health education and social care. When they are looking at what is needed in an area they will have to take into account the needs of all children with a disability, including those without a special educational need, which was not the case under the Bill as it was drafted.
I very much welcome the Government’s concession here, as far as it goes. The Minister knows that I would have preferred to have an amendment to apply the whole of Part 3 to children with a disability as well. That would have achieved a truly inclusive, integrated and comprehensive system for all disabled children, whatever their disability and whatever the extent of their need. Many feel that this was the promise of the Green Paper. However, we have come part way and that is to be welcomed.
Turning to the government amendments, I think that my Amendment 17 has the advantage of being completely comprehensible when you read it, but the 40-odd government amendments are not so easily understood. I understand that it has been done in this way to achieve a more comprehensive effect and I look forward to the Minister explaining that. I beg to move.
My Lords, it may be helpful if I outline our government amendments in this group to enable noble Lords to have a debate if they wish to. In Grand Committee we had an extensive debate about the support for disabled children and young people and I know that this is an issue on which the noble Baroness, Lady Hughes, has reflected deeply, as have I since then. Many Peers expressed concern that disabled children and young people without SEN would miss out on the benefit of our reforms and, at the time of the debate, I introduced a government amendment to require schools to make arrangements for supporting children with medical needs. I also asked for help from noble Lords in understanding which groups of disabled children would not be supported by this Bill, the government amendment in respect of children with medical needs, the provisions of the Equality Act 2010 and Part 3 of the National Health Service Act 2006.
Following the debate, the Every Disabled Child Matters campaign sent some very helpful advice to the department in which it said:
“The Government rightly made the point in the debate yesterday that disabled children and young people are already protected by a range of other legislation, such as the Equality Act 2010, the NHS Act 2006 and the Children Act 1989.
We would like to stress that our concern is not about the rights of individual children and young people who may have a disability but no SEN. We completely accept that on an individual level they are protected under the Equality Act 2010 and other legislation. Our concern is about disabled children and young people as a group not being included in the joint commissioning arrangements, review functions, and local offer duty”.
It went on to suggest which clauses in the Bill might be amended to achieve this—Clauses 22, 24, 25, 26, 27, 30 and 32—and drafted a single amendment to deliver this. I am grateful to the noble Baronesses, Lady Hughes of Stretford and Lady Jones of Whitchurch, for their amendment, which is largely based on the Every Disabled Child Matters amendment.
We agree with Every Disabled Child Matters that the clauses identified should be amended. However, our view is that, by relating the provision for disabled children and the young people to special educational provision, a single amendment would not deliver the outcome that we all want, and that we need to amend each clause.
Clause 22 would be amended to require local authorities to exercise their functions with a view to identifying both the children and young people with SEN and disabled children and young people. Clause 24 would be extended to require health bodies to inform the child’s parents and their local authority where they are of the opinion that a child under compulsory school age has, or probably has, a disability. Clause 25 would now require local authorities to exercise their functions with a view to ensuring the integration of education and training provision with healthcare provision and social care provision for children and young people with SEN and disabled children and young people, where they think that this would promote their well-being, including in relation to their participation in education, training and recreation. In Clause 26, the duties on local authorities and their partner commissioning bodies to make joint arrangements for the commissioning of education, health and care provision for children and young people with SEN would be amended to include disabled children and young people.
Clause 27, which currently requires local authorities to keep under review the special educational provision and social care provision for those with SEN, would be extended to cover provision for disabled children and young people. They will broaden it to cover all education and training provision, not just special educational provision, for children and young people who have SEN or are disabled.
The amendments also require local authorities to consult disabled children and young people and their parents when carrying out that duty. The provisions in the local offer would include disabled children and young people, both in relation to the information to be published and in developing and reviewing the local offer and publishing comments. In Clause 32, the requirement on local authorities to arrange for young people with SEN and parents of children with SEN to receive advice and information on SEN would be extended to include provision for disabled young people and the parents of disabled children to be provided with information about matters related to disability. I have also tabled an amendment, which we shall come to later, to extend the requirement to cover children themselves as well as their parents. Clause 73 would make it clear that the definition of disability applied to the provisions covered by these government amendments is that in the Equality Act 2010.
Noble Lords will also be aware from commitments that I made in Committee that we are looking at ways of strengthening links to the Equality Act duties, including those to make reasonable adjustments in the SEN code of practice. The amendments that I am speaking to today will sharpen the focus on the Equality Act duties considerably. Since the code of practice is statutory, the guidance that it provides cannot be ignored. I will respond to the debate in the normal way in due course but I hope that noble Lords are reassured by these amendments.
Amendment 17 withdrawn.
17A: Clause 21, page 20, line 16, leave out subsection (5) and insert—
“(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).”
My Lords, I would like to speak to the group containing government Amendment 17A and Amendment 18, tabled by the noble Lord, Lord Ramsbotham. Both amendments seek to set out the circumstances in which provision that would otherwise be health or social care provision should be treated as special educational provision. The Government have consistently given an undertaking to maintain existing protections for parents in the new system. Clause 21(5) was drafted as part of that undertaking. It sought to replicate as far as possible the case law established under the present SEN legislation, which in our view makes it clear that health provision, such as therapies, can be educational, non-educational, or both, depending on the individual child and the nature of the provision. Case law has established, in particular, that since communication is so fundamental in education, in addressing speech and language impairment it should normally be treated as educational provision unless there are exceptional reasons for doing otherwise. We have reflected this in section 7.9 on page 109 of the draft SEN code of practice.
We all share the aim of carrying the current established position through into the new system, but this is complicated legal territory and it has not been straightforward to find the right formulation. We are grateful to the noble Lord, Lord Ramsbotham, for his personal interest here and for his involvement with the Royal College of Speech and Language Therapists, which kindly shared and discussed its legal advice with the department. We have taken that advice into account in drafting government Amendment 17A, which we believe would maintain the position established in case law that we all seek.
In our view, a local authority and, where relevant, a tribunal, in considering whether healthcare provision or social care provision was to be treated as special educational provision, would ask themselves whether it was educational, taking the approach set out in the current SEN code of practice in respect of speech and language therapy. We have carried this into the new landscape of the Bill in relation to education and training. We believe that our wording is expressed a little more simply than the amendment of the noble Lord, Lord Ramsbotham, and that it is consistent with the present approach. I beg to move.
My Lords, unfortunately my noble friend Lord Ramsbotham cannot be in his place to speak to his Amendment 18, and he has asked me to do so on his behalf.
He tabled this amendment to try to ensure that, alongside the recognition that speech, language and communication needs are special educational needs for an increasing number of children and young people in this country, speech and language therapy retains its status as a special educational provision. This is important for two reasons. First, under the new SEN system, parents of children with EHC plans can appeal to the Special Educational Needs and Disability Tribunal only if this therapy is recognised as special educational provision. Therefore, it is vital that speech and language therapy, officially a healthcare provision, retains its educational status. Secondly, as originally drafted, speech and language therapy could be left out of an EHC plan on the basis that it is not “reasonably” required.
My noble friend is pleased to see that in Amendment 17A the Government appear to have recognised this; he is therefore pleased to accept the government amendment and for Amendment 18 not to be moved.
My Lords, I have a simple question about this. Having been sick last week, I may have missed the answer in all the mass of information that usefully comes from the department. Again, it is a question about implementation, as my questions usually are. When anything classified as social care and health becomes an education provision, it will be financed. However, how will it be financed in a college for disabled youngsters where there are myriad therapists, who might be physiotherapists or speech therapists, or where the youngsters may have a residential social care provision in the same place but that is linked to the education? That is rather crucial—almost more crucial than the legislation.
My Lords, I speak in support of Amendment 18 in my name and that of the noble Lord, Lord Ramsbotham.
There are countless examples of parents around the country who have had to fight for special educational provision for their children. Of course, this is much easier to pursue for middle-class, articulate parents compared with those from poorer households, but the need for clarity about what provision is available and who should provide these services is essential for all parents who need extra help for their children, irrespective of background.
The problem is that, rather than clarifying the position on special educational provision and ensuring the Government’s stated intention of carrying the current established position into this Bill, the wording of the clause in the original draft set a higher threshold than that which currently exists—a danger identified by the sector and expert lawyers. Therefore, healthcare provision and social care provision could be defined only as special educational provision if,
“made wholly or mainly for the purposes of ... education or training”.
If the healthcare provision or social care provision did not directly enhance the education or training of the child, it could not be considered to be special educational provision; it would simply be defined as healthcare provision or social care provision.
I shall not go into the details here of why that makes a difference, as those were rehearsed in Committee, but, thankfully, the Government have acknowledged the concerns of Peers and have introduced new wording as a result of opposition to the initial draft. There was still, however, concern around this new wording, which is why the Government have moved even further to amend the language.
We have come a long way on this clause. We are grateful to the Government for that and we would like to recognise the work of the noble Lord, Lord Ramsbotham, the Royal College of Speech and Language Therapists and David Wolfe QC. On the whole, I welcome the fact that, on this issue the Government have listened to our concerns, and I, too, will be happy not to press our amendment.
My Lords, I thank the noble Countess, Lady Mar, for putting the noble Lord’s case. He is indeed a doughty fighter, as we all know. I am mightily relieved that he is pleased that the Government have put forward this amendment and that he is therefore happy for his amendment not to be moved.
I also thank the noble Baroness, Lady Morgan, for what she has said. I assure the noble Baroness, Lady Howarth, that joint commissioning will ensure that arrangements are in place to cover the financing. I will write to her with all the details.
At this stage of the evening, I am extremely glad that we all appear to agree. Clearly, it will very soon be Christmas.
Amendment 17A agreed.
Amendment 18 not moved.
Clause 22: Identifying children and young people with special educational needs
Amendments 18A and 18B
18A: Clause 22, page 20, line 24, after “identifies” insert “—
18B: Clause 22, page 20, line 25, at end insert “, and
(b) all the children and young people in its area who have a disability.”
Amendments 18A and 18B agreed.
18C: After Clause 22, insert the following new Clause—
“Data on the number of children and young people with special educational needs and disabilities
(1) A local authority in England must publish information annually within the local offer on the number of children and young people in its area who have special educational needs and disabilities.
(2) Information under subsection (1) must be published by type of special educational need and disability.”
My Lords, I hope that the Government will agree to this amendment. Clause 22 requires local authorities to identify children with special educational needs. This amendment would require the local authority to publish these data within its formal offer. I have tabled the amendment because I am concerned about the availability of good-quality data on children with SEN and disabilities. It is an important issue, which could well determine the success of the Government’s proposed reforms.
Accurate data on the number of children in their area is vital for local authorities effectively to plan and deliver services. The draft SEN code of practice, particularly in the section on joint commissioning, outlines the importance of local data sets in identifying the needs of children with SEN and in informing their decision-making. Without good-quality data, it is difficult to see how the Government or local authorities can effectively plan and commission services for children with SEN and disabilities. It also means that we have a very weak basis on which to determine the long-term impact of these changes.
I am pleased to see that the Government will be amending the Bill so that local authorities have a clear duty to identify children with disabilities, as well as those with SEN. However, there is compelling evidence that existing data sets are failing accurately to identify all children with SEN and disabilities. Currently, data from different sources for the same area can vary widely. Using deafness as an example, I know that different figures on the number of deaf children vary by as much as 30,000: according to the disability register, there are 7,500 deaf children; according to the school census, there are 16,000; and, according to the National Deaf Children’s Society’s survey of all 152 local authorities in England, there are 37,500 deaf children.
Sense has also identified a widespread failure accurately to identify numbers of children who are deafblind. In the local authority of Kensington and Chelsea, Sense has found that, according to the prevalence data, there should be around 10 deafblind children. However, the local authority has identified four. How many have been identified by the school census? The answer is none. These children urgently need specialist SEN support, so why is the system not capturing them?
In Grand Committee, the Minister enumerated the various sets of data that are published but failed to acknowledge that the existing data sets are inadequate. For example, the Special Educational Needs in England report does not cover all children with SEN and so misses more than 40% of school-age deaf children. A single data set is needed to bring together all the data from different sources into a format which would ensure well informed commissioning decisions.
It is difficult to see how the Minister’s department will meet the ambitions set out in the Bill unless we have a reliable and single data set that accurately captures all children with an SEN and disability. The current state of affairs cannot be allowed to continue whereby 152 local authorities are left failing correctly to identify and record all children with SEN and disabilities. I hope that the Minister will give the House reassurance that the urgency of this matter is recognised and that work is in hand to ensure that commissioning can rely on accurate data before this Bill comes into force. I beg to move.
My Lords, I support the amendment tabled by the noble Baroness, Lady Wilkins. Good quality data on children with SEN and disabilities must be in place before we proceed with these reforms. Unless action is taken, there is a clear risk that some children will continue to fall through the net. The department’s draft SEN code of practice acknowledges that issue and specifically highlights the importance of quality data on children with low incidence needs. Given that these children’s needs are relatively less common, there is an even greater need to establish their needs and whether local provision is sufficient to meet them.
However, as the noble Baroness, Lady Wilkins, has pointed out, existing data sets are flawed. The code of practice refers to the disability register. However, in the case of deaf children, I understand that it is identifying only around 7,000 to 8,000 children, whereas other estimates suggest that 40,000 would be closer to the truth. I understand that the department recently published guidance to local authorities on implementation of the new nought to 25 special needs system. In that, the Department for Education asks local strategic leaders to consider what their data tell them about local outcomes for children and young people with SEN.
My concern is that, whatever these data tell them, they are not going to give a reliable or accurate impression of children with SEN because the underlying data sets and systems are so fundamentally flawed. I hope that the Minister will be able to reply positively in support of this amendment or indicate that positive action is being taken to address these concerns.
I, too, have put my name to this amendment and strongly support it. There is not a lot to be said in addition to what has been said by the noble Baronesses, Lady Wilkins and Lady Howe, but perhaps I could ask the Minister one or two questions which it would be helpful if he could respond to in responding to the debate. The information currently collected clearly does not include all children with SEN. What is being done to address that by the department? It is also clear that the information needed to be collected in order that we might get effective planning and commissioning is spread out over different data sets. It would be helpful to know what is being done to bring together the information to be found all over the place in different places to ensure that we get well informed commissioning and decision-making.
Finally, does the Minister know whether the department will take in hand the co-ordination of all the data required, or will that be left to local authorities? If it is going to be left to 152 different local authorities, it is difficult to see how the department will be able to meet the ambition set out in the Bill to improve commissioning without the data sets being improved. Does the Minister agree that it would be better for the department to co-ordinate this area of work rather than leave it to 152 local authorities? If it is left to the local authorities, it is hard to believe that we will get a coherent solution. There are bound to be variations and the data is bound to remain very patchy. Therefore, it would be very valuable if the department would take a stronger hand in co-ordinating this work and in making sure that we get the data that we need to have in order that the reforms in the Bill may be implemented in the way that the Government want.
My Lords, I understand that the Government probably do not want to increase the level of bureaucracy in local authorities in terms of information gathering. I also understand that they possibly do not want to have centralisation when one of their main tenets is to decentralise to local government. That being said, however, successive Governments have failed to get this right. Those of us who were involved in trying to implement the Chronically Sick and Disabled Persons (Amendment) Act 1976, which was a long time ago, remember that one of its main provisions was to try to get decent data on which to make strategic planning.
The only point I really want to make is that there is a conflict between that wish not to increase bureaucracy and not to be able to get consistent data on the same basis across the whole of the local authority areas in order to plan. It is not just local authorities which will be affected. I spend a lot of my time in charities. They need to plan their strategy for some very large amounts of provision. I have chaired a number of committees where we have needed data in order to make a decision as to how we are going to move resources from one area to another. If you do not have that information, you can get that wrong. I would like to know how the Minister thinks that that kind of strategic planning can be carried out when the data lack that clear underlying consistency but at the same time I recognise the difficulties that it may cause in other areas of the Government’s plan.
My Lords, I support Amendment 18C and very much echo the arguments put forward by my noble friend Lady Wilkins and other noble Lords in this short debate.
Clause 22 already sets out that it is a requirement on local authorities to identify all children in their area with SEN. The Government obviously intend this data gathering to take place and this work to be done; otherwise they would not have put this in the Bill. It therefore needs to be collected and collated in an organised and effective way. It cannot be argued that it is an extra administrative burden when the basic requirement for the information to be gathered is already in the Bill. Noble Lords have raised genuine concerns about the quality of data in the past and the challenge of improving that quality in the future. I would also like to ask the Minister how the Government, if they think that it is important for the information to be collected, intend to make sure that the quality is delivered so that a proper planning process can take place. Obviously, it is necessary to have this information as a precursor to planning service delivery for all those people with SEN in local authorities.
The amendment is partially about transparency. It is about making sure that the data are not only collected but shared in an appropriate way so that they help both planners and service users to have a more informed input into the local offer and help devise better services in the future. The data might also have the advantage of providing isolated families with the knowledge of how many other families, children and young people in their area share a similar type of SEN or disability, which may help to bring people together.
The amendment is very much in the spirit and intent of the local offer, which is designed to help parents, children and young people shape services for the future. That is part of an ongoing debate that we have been having. The data collection and the quality of that data are crucial to help make this happen. Therefore, I hope that the Minister will see the wisdom in the amendment and will be able to support it.
My Lords, I would like to thank the noble Baroness, Lady Wilkins, for raising this important issue and noble Lords who have spoken on this matter. I accept noble Lords’ concerns on this. I understand that the noble Baroness’s purpose behind tabling the amendment is to put, as the noble Baroness, Lady Howarth, has said, local authorities and schools in a better position to make good commissioning decisions. Good commissioning is clearly an important underpinning to the reforms that we are making and the Bill already provides for joint commissioning arrangements across education, health and care for the provision that is reasonably required for local children and young people with SEN. That commissioning will be informed by the local joint strategic needs assessment and the data that are already available on these children and young people.
I accept absolutely that good data need to be available to inform commissioning, but I do not think that the local offer is the right place to publish that data. The purpose of the local offer is to set out what provision children, young people and families can expect in their local areas and it is to be used as a vehicle for discussion about the development of local services. It is not designed to publish information on the numbers of children and young people in the area with different types of SEN. It would not be appropriate to clutter up the local offer with such data. We accept that that information will be material to discussions about the development of provision in the local area, but that information is available elsewhere.
The department already collects data from schools and local authorities on the number of children with special educational needs and publishes this annually on the department’s website. This includes data about the number of children by type of special educational need and we will be expanding this information. At present, we publish data by type of need for children at school action plus and with SEN statements. However, as we move to the new system for school-based SEN support, we will also publish data by type of need for children who are currently at school action.
For disabled children, local authorities are already under a duty to maintain a register of disabled children and young people under Section 17 of, and Schedule 2 to, the Children Act 1989. The draft, new SEN code of practice reminds local authorities of that duty. The department also collects data on children in the early years through the early years census. For post-16, the Education Funding Agency and the Skills Funding Agency also collect data on young people in the further education sector, through the individualised learner record on a range of types of need. Requiring local authorities to publish this data in the local offer would just replicate data that is already available.
So far as bringing together these different data sets into one place is concerned, as I said, I do not believe that the local offer is the appropriate place to do this, and I do not think it is right that central government should impose on local authorities something that they should already be doing. Some local authorities may well be poor at carrying out their duties in this regard, but that is not a legislative issue: it is a matter of practice. We have made it clear in the code that local authorities have this duty.
The noble Lord, Lord Low, talked about incomplete data. It is true that SEN data from the early years census, although available on request, is not routinely published publicly, but we will make sure in future that it will be and will be linked up to the main SEN statistical publication. I assure noble Lords that the department is thinking about what the new arrangements in the Bill imply for data collection and we are seeing where there are possibilities for greater clarity and the joining up of data sets. The post-16 data that are collected by the department, the Education Funding Agency and the Skills Funding Agency are publicly available on a number of websites, and we are looking at ways to bring these together for greater clarity.
Indeed, more generally, we are looking to see how data can be brought together to reflect the new nought to 25 arrangements under the Bill. We will also consider whether there should be a collection of disability data from schools. I would be happy to discuss this further with the noble Baroness and any other noble Lords who are interested. On that basis, I ask the noble Baroness to withdraw her amendment.
My Lords, I thank the Minister for that reply. Unfortunately, agreement has not continued from previous amendments. I thank all other noble Lords who contributed to this debate, but I find the Minister's reply extremely disappointing. He said that the local offer was not the place to put this information and that it would be cluttered up by it. But he then went on to enumerate various forms of collection of the data which fail to recognise that it is the quality of the data that are collected that is so criticised at the moment: it is failing to provide its purpose. It seems key that, without reliable data, local authorities will not be able to commission the services that are needed.
I will read what the Minister has said in Hansard and consider this further. As I said, I am disappointed in his reply, but, for the moment, I beg leave to withdraw the amendment.
Amendment 18C withdrawn
Clause 23: When a local authority is responsible for a child or young person
18D: Clause 23, transpose Clause 23 to after Clause 24
Amendment 18D agreed.
Clause 24: Duty of health bodies to bring certain children to local authority’s attention
Amendments 18E and 18F
18E: Clause 24, page 20, line 38, at end insert “or a disability”
18F: Clause 24, page 21, line 7, after “needs” insert “or disability”
Amendments 18E and 18F agreed.
Clause 25: Promoting integration
Amendments 18G and 18H
18G: Clause 25, page 21, line 11, leave out “special educational” and insert “educational provision and training”
18H: Clause 25, page 21, line 14, after “needs” insert “or a disability”
Amendments 18G and 18H agreed.
Clause 26: Joint commissioning arrangements
Amendments 18J to 18N
18J: Clause 26, page 21, line 32, after first “for” insert “—
18K: Clause 26, page 21, line 33, at end insert “, and
(b) children and young people in the authority’s area who have a disability.”
18L: Clause 26, page 21, line 40, after “by” insert “—
18M: Clause 26, page 21, line 42, leave out “concerned” and insert “within subsection (1)(a)”
18N: Clause 26, page 21, line 42, after “needs” insert “, and
(ii) the disabilities of the children and young people within subsection (1)(b)”
Amendments 18J to 18N agreed.
19: Clause 26, page 22, line 15, at end insert—
“( ) securing for children and young people with special educational needs but no EHC plan the education, health and care provision agreed under subsection (3)(a).”
My Lords, unfortunately, my noble friend Lord Ramsbotham cannot be in place at this time of the evening and he asked me to lead, on his behalf, on this group of amendments, about which I know that he has spoken to the Minister. Had he been here, he would have spoken first to Amendment 19, which is by far the most important in the group, because it is designed to try to strengthen the duty on local authorities and their health partners to make joint commissioning arrangements to satisfy the vast majority of children with special educational needs, including speech, language and communication needs, who do not have education, health and care plans.
At present, while 2.8% of all pupils in our schools have SEN with a statement, 16.2% have SEN with no statement. As a result, the schools they attend will have to try to obtain external support services such as speech and language therapy, educational psychology, children and adolescent mental health services and behaviour support teams for them. If such support is not available, their conditions may well worsen, resulting in the need for expensive EHC plans later on in their lives.
As currently framed, the duty on local authorities regarding those with SEN but no EHC plan requires them and their health partners to make arrangements to agree the provision of support—but, incredibly, not to secure its provision. Nor does the duty require partners either to operate or reach agreement on any provision, which is only sought on the basis of what is “reasonably required”. Health partners can use the NHS Act 2006 to decide for themselves what that amounts to, without even having to discuss with the local authority whether it would be appropriate to provide additional support in particular circumstances. What is more, there is currently no specific requirement for consultation on joint commissioning arrangements, and no specific requirement to publish what has been agreed.
This group of amendments is designed to mitigate those shortcomings. The amendments would make joint commissioning arrangements stronger and more transparent, enabling them to fulfil their function of securing provision for children and young people with SEN who are not protected by an EHC plan, and better provision of the external support that schools need for children and young people without plans.
Amendment 19 is about securing the provision agreed under Clause 26(3)(a). It also includes an obligation similar to that in Clause 26(4)(b), requiring local authorities to make arrangements to secure the provision in EHC plans. Amendments 20 and 21 are designed to ensure that local authorities and health partners actually operate the joint commissioning arrangements and reach agreement. I see absolutely no point in legislating for the farce of local authorities taking necessary arrangements into account in their decision-making and then not effecting them.
Amendment 22 is designed to ensure that health partners cannot simply use the NHS Act 2006 as a basis for deciding alone what is reasonably required. If joint commissioning is to mean what it implies, health partners must sometimes accept the need for them to do things that they might not otherwise do. Amendment 23 inserts a specific requirement for public involvement in joint commissioning arrangements. Amendment 24 inserts a specific requirement to publish what has been agreed.
My noble friend would have made two further points. First, he would have sought clarification from the Minister on the role of the Minister for Youth Policy in all this. On 3 July, the Government announced that cross-cutting responsibility for youth policy was being transferred from the Department for Education to the Cabinet Office, which would now lead for the Government on: cross-government youth strategy and policy co-ordination; management of the statutory duties on local authorities for youth provision in their areas; and strategic relationship management with young people and youth sector organisations on policy development. Looked at objectively, nothing needs more cross-cutting than what is sought by these amendments. Can the Minister tell the House whether the Minister for Youth Policy, Nick Hurd MP, has a role in that?
Secondly, having read the government amendments published this morning, and in anticipation of the many amendments to Clause 30 on local offers, which turn out not to be offers at all but merely information about what might be available, I suggest to the Minister that at the heart of my noble friend’s concern is the single word “implementation”. On the face of it, there is a disconnect between local authorities and health partners—which I suggest means the Department of Health, the Department for Communities and Local Government and the Department for Education, no doubt exacerbated by the amount of change that the NHS is currently going through.
Much is at stake here, because we are talking about the future of so many children and young people, about which bodies including lawyers, the National Association of Head Teachers, the Royal College of Paediatricians and Child Health, the Special Educational Consortium, Every Disabled Child Matters, the Children’s Services Development Group, the Royal College of Speech and Language Therapists and many others have expressed concern.
My noble friend is reluctant to test the opinion of the House on this when it is clear that the Government share his concerns. I understand that he has discussed his offer to host a seminar on the subject early in the new year, at which the Minister kindly offered discussion with officials from both the Department of Health and the Department for Education—to which he would like to add someone who can speak with authority about local authorities. I should be grateful, therefore, if the Minister would expand on what she has in mind when she replies.
My Lords, I have much sympathy with the amendment, particularly the point raised by the noble Baroness, Lady Howe, about those who do not have EHC plans. As she rightly said, we are talking about a large number of children—a much larger number of children than will have EHC plans—and it is important that there are facilities to meet their needs. The onus is now on schools to provide those facilities, but we know that traditionally, schools have relied considerably, first, on local authorities to help provide them and, secondly, on health authorities and, for that matter, social services to supplement them.
At the moment, there seems to be a void in the Bill on the question of how more specialist facilities are to be provided. The joint commissioning arrangements, as identified in the Bill, are fine, but at the moment they are targeted at those with EHC plans; there is no mention of those without them. I think that the idea is that what is available will be spelled out in the local offer—I look forward to what the Minister has to say when we discuss the local offer. At the moment, there are a lot of loose ends and, given the number of children and young people involved, I hope that the Minister will take the matter seriously.
My Lords, briefly, I support the amendments, especially Amendment 19. I do so because Clause 26, which deals with joint commissioning arrangements, is an extremely important part of Part 3 and the new apparatus that the Government are constructing. I support the amendments because they are aimed at strengthening the joint commissioning arrangements. They need strengthening because of the wording of the Bill. We discussed this in Committee. Clause 26 seems to provide that local authorities and health and education authorities must set up arrangements so that they can have a discussion about what needs to be provided in an area, but it does not say that they must secure the provision that they think is needed. That is an odd omission. Amendment 19, in particular, would create an obligation to secure the provision for children and young people who have not got the education, health and care plans agreed under Clause 26(3)(a). That is a very important amendment to make to the Bill.
As the clause stands, it says that the local authority and its partner bodies “must make arrangements”. The omission to do with “securing” is particularly important with regard to health. As we said in Committee, potentially they can use other legislation for absolving themselves from improving on the provision available, on the ground of cost. It would be very helpful if the Minister could put on record the Government’s intentions in Clause 26 in relation to securing the provision that is identified as being needed through the joint commissioning arrangements, particularly, but not exclusively, in relation to health.
Given that Amendment 19 seeks to strengthen Clause 26 in relation to that securing and, as the noble Baroness, Lady Sharp, has said, identifies the rather insecure position at the moment of children and young people without plans, I support it and hope that the Government are sympathetic.
My Lords, I thank the noble Baroness, Lady Howe, for speaking on behalf of the noble Lord, Lord Ramsbotham, and arguing his case for him. He and I had very useful discussions before he had to leave and I know how reluctant he was to depart. Noble Lords are right: this is a very important issue. These amendments are designed to ensure that those without education, health and care plans can have their needs met and that the joint commissioning arrangements are transparent and effective. We understand the purpose behind that.
It is worth emphasising—and helps me in understanding the provisions here—that I have just come, as it were, from the Department of Health and worked on the health Bill. The NHS is, and continues to be, a universal service. It must respond to the reasonable health needs of the population it serves. That will be an absolute requirement, connected with the fundamental duties on commissioners to meet the health and care needs of children and young people, and supported by the requirements in the National Health Service Act 2006 on CCGs to engage with the public and with professionals and to promote integration of health and social care and health-related services. It is worth remembering, then, the strength of those provisions from the health side when looking at these arrangements.
Joint commissioning is the heart of the new arrangements for SEN. The statutory framework makes local authorities and CCGs working together fundamental to how we meet the needs of children with SEN and disabled children. Working together is not an option; it will be a “must do”, thanks to this Bill.
Our joint commissioning requirements are backed up by powerful statutory accountability. NHS England’s mandate—the “must dos” for the NHS—sets a clear objective that the NHS must ensure that children with special educational needs have access to the services identified in their agreed plan. NHS England will be held to account for delivery of that, and it in turn will hold CCGs to account.
There is also local accountability, as every CCG’s plans and performance are scrutinised by the local health and well-being board. That board has a specific role to improve the health and well-being of the local population and reduce health inequalities. It must include representatives from each local CCG, Healthwatch and the local authority directors for adult social services, children’s services and public health. Those are key people, accountable for local services. They will prepare the joint strategic needs analysis of the population, including this group, at high level.
I hope this helps to reassure noble Lords that the needs of children and young people with SEN and disabilities with and without plans will be met, and that on that basis Amendments 19 and 22 are unnecessary.
The joint commissioning arrangements require that partners across education, health and care work together to deliver integrated services for those with SEN and disabilities. In the draft SEN code of practice we are explicit that arrangements must be established that are clear and robust, including what happens in the event of a dispute between partners, and should be specifically accountable to councillors and senior commissioners locally.
Equally, subsection (4) makes it very clear that partners must be able to reach agreement on a course of action in every case. The wording in the joint commissioning clause reflects the fact that the parties are expected to follow the arrangements unless there is a good reason to depart from them.
On making the commissioning arrangements transparent, we say in the draft SEN code of practice that commissioners should engage partners, and particularly representative groups such as parent carer forums, as the first stage of their joint commissioning arrangements. We hear what noble Lords have said and conclude that we could be even clearer on that in the code. In the final version we will say more on the role of schools in the commissioning process.
That is very helpful. Could the Minister clarify subsection (4)? It says:
“Joint commissioning arrangements about securing education, health and care provision must … include arrangements for”,
securing EHC needs assessments. It talks about EHC assessments only and EHC plans only; it does not talk about securing services for children without plans.
The noble Baroness will note that I have talked about supporting children with and without plans. If she bears in mind the responsibilities within the NHS, the NHS mandate, the responsibilities of the CCGs, what the health and well-being boards are designed to do and the intention within the health service to reduce inequalities and ensure that nobody is left out, and looks at those matters in conjunction with that, I hope she will see that there are very strong provisions coming from the NHS side that help to address this. In a minute, I may give her some more comments from the education side, but I hope she will appreciate that joining up with the NHS is a very positive move forward.
Under this Bill, the local authority is also required to consult on the local offer and when it is keeping its education and social care provision under review. Equally, there are duties on CCGs to ensure they, too, consult with local partners and patient groups, including at the commissioning stage. CCGs are held to account by NHS England for delivering this statutory duty, and NHS England has issued statutory guidance for CCGs on engaging with patients.
The noble Baroness, Lady Howe, made the point that the noble Lord, Lord Ramsbotham, made to me about the role of Nick Hurd and the Cabinet Office taking responsibility for youth strategy—for example, youth clubs and national citizenship services. That is distinct from departmental responsibilities for education, health and social care, which, obviously, are about the best services for young people as well as children. Cross-government working, especially between the Department for Education and the Department of Health, is critical to the success of these reforms. The Cabinet Office has a role to play because of its strategic oversight of support for young people.
I reassure my noble friend Lady Sharp—and this also picks up the point made by the noble Baroness, Lady Hughes—that the provisions in Clause 26 for joint commissioning embrace children and young people without EHC plans, as well as those with such plans. I hope that the noble Baronesses will be reassured by that.
As the noble Lord, Lord Ramsbotham, and I discussed before his departure tonight, the Government are clear that further legislation is not the answer. The noble Lord has identified an important implementation challenge and the noble Baroness made reference to that challenge.
We must indeed ensure that local areas take full advantage of the opportunities offered by the NHS reforms which I have, I hope, spelt out and by the Bill to secure the best possible planning and commissioning of services to meet local needs. Children with SEN and disabilities, who particularly need their health services, schools and local authorities to be joined up, must benefit from this. That is why I propose that instead of pursuing this amendment a better proposition, which is what the noble Lord, Lord Ramsbotham, and I talked about, would be to arrange a meeting with those working on implementation at the Department for Education and the Department of Health. The noble Baroness referred to that meeting; it would also be with the interest groups that the noble Lord mentioned—the noble Baroness mentioned local authorities, which are obviously also relevant here— and would be about what we should be doing to get the implementation right. I was very glad that the noble Lord, Lord Ramsbotham, was enthusiastic about contributing to that. Of course, he has a lot of expertise in this area.
I hope very much that we will go down that route and that instead of pursuing this amendment, we will take forward these discussions about how this is best implemented, while taking on board the issues which noble Lords have flagged up. I hope that I have been able to reassure noble Lords that the joint commissioning arrangements clause offers a strong framework that works with the NHS and will drive forward the SEN reforms locally, for those with and without plans, and that the NHS mandate, with its specific emphasis on inclusivity, addressing inequalities and on children with special needs, helps to underpin this. On that basis I urge the noble Baroness, on behalf of the noble Lord, to withdraw the amendment.
Amendment 19 withdrawn.
Amendments 20 and 21 not moved.
Amendments 21A to 21C
21A: Clause 26, page 22, line 27, after second “for” insert “—
21B: Clause 26, page 22, line 29, after “needs” insert “, or
(ii) any children and young people in the authority’s area who have a disability”
21C: Clause 26, page 22, line 32, leave out “such children and young people” and insert “children and young people within paragraph (a)”
Amendments 21A to 21C agreed.
Amendments 22 to 24 not moved.
Clause 27: Duty to keep education and care provision under review
Amendments 24A and 24B
24A: Clause 27, page 22, line 40, leave out “special educational” and insert “educational provision, training”
24B: Clause 27, page 22, line 42, after “needs” insert “or a disability”
Amendments 24A and 24B agreed.
25: Clause 27, page 22, line 42, after “needs,” insert “including organisations that provide online or blended learning (or both),”
My Lords, this is a long list of amendments with, the noble Baroness will be pleased to hear, a brief message. The Government are trying to ensure that children with special educational needs have the best education and we are all agreed that that is commendable. The Bill focuses on provision for SEN children and young people who are within mainstream education. This excludes some 100,000 youngsters who cannot have access to the traditional schooling system for reasons of chronic illness, disability, exclusion, relocation of looked-after children, or children who live in a secure environment.
The Government often give the impression that they believe that excluded young people are not interested in learning. As a result, the focus is on mainstream education. At Second Reading, my noble friend Lady Howe of Idlicote highlighted the BIS research paper from January 2013 on the motivation and barriers to learning for NEETs—young people not in education, employment or training. I discussed it further in Grand Committee. It is obvious that it is actually these barriers which make young people feel disillusioned. This leads to their exclusion from the education system and puts them at risk of joining the 979,000 young people who are currently on the NEETs register. These young people cost the taxpayer about £56,000 a time. It is vital that they are not left behind.
We know that the right support given at the right time can make an enormous difference and helps young people to achieve their personal ambitions. Students who appear to opt out of education do not do so on impulse. There is usually a chaotic background to their lack of engagement that needs to be dealt with sensitively. We must bear in mind when developing an education solution for these vulnerable young people that one size does not fit all. Clause 19 shows clearly that the Government are determined to involve children and their parents in the decisions around specialised education and that they get the right support at the right time. Surely, by allowing parents and children to have direct input into the organisations that could be part of their education provision, the Government would ensure that they have the best provision with the widest range of suppliers, helping them to achieve their objective.
Education provision for those outside the mainstream is often supplied by individual organisations such as Nisai and the Red Balloon project, which have created innovative ways to help those pupils who are currently out of school. Online and blended learning is one such innovative technique that has been utilised by parents to ensure that their children have access to the education they need. I described in Grand Committee the means by which this is achieved so I will not repeat myself. As I said then, this type of learning is an important tool for many parents but is not recognised as part of the framework of education provision for young people with special needs. This means that it cannot be rolled out to help numerous other children. It is available just to those parents who are in the know and can afford to pay. As it stands, money assigned to a pupil or student while inside the mainstream school system does not follow them once they cease to be on the school roll. This means that it is often difficult for them to access the alternative provision that would help them.
If online and blended learning was officially recognised as part of the education provision that can be provided by local authorities, it would become easily accessible and enable the Bill to fulfil its purpose,
“to improve services for vulnerable children .... to ensure that all children and young people can succeed, no matter what their background”.
In addition, the costs make sense. Online and alternative providers can help to save the Government money. Students will no longer need to be taught in isolation for a few hours a week by home tutors. They will join virtual classrooms of 10, with one teacher, and will have access at any time of the day or night. Local authorities, which are under pressure to reduce their costs, will be able to save on other parts of their budgets. For example, I understand that in 2010 Northamptonshire County Council spent more than £6 million on taxis for disabled special needs children, expelled pupils and young mothers. Saving these costs by centralising the use of online and blended learning would enable local authorities to allocate funds to other vital services.
If online and blended learning were to be formally recognised, there need be no fear that anything need be taken away from mainstream education for the majority of children. These amendments are simply about adding a safety net to catch youngsters who would otherwise be drinking at the last chance saloon. I have already used the example of Nisai to highlight the important role of individual organisations which have created imaginative ways to help those who are excluded and produced excellent results. It makes sense that the good work which alternative education providers have been doing for a small percentage of vulnerable young people can be rolled out to reach the most vulnerable in society.
Finally, I stress to the Minister that it is obvious that the use of online learning has support from all sides of the House. We noticed that in Grand Committee. We really need to enter the digital age in this educational field. Virtual education has been used successfully by universities for many years and I am sure that the noble Baroness would agree that it is time that primary and secondary education caught up. Most children are computer literate at a very early age and those who cannot attend mainstream schools would probably enjoy the ability to access educational material in virtual classrooms. I think particularly of the young people who I know best: those who are housebound or bedridden because they have ME. They can take small bites of material at a time and many have had excellent examination results.
I am very grateful for the meeting that I had with officials yesterday. I hope that, as a result, the noble Baroness will look on my amendments kindly and that, even if she is not prepared to see them within the Bill, she will ensure that online and blended learning are included in the relevant codes of practice. I beg to move.
My Lords, I support the amendment of the noble Countess, Lady Mar. I do not know what the Minister is about to say, so it might not be necessary for me to speak. However, in case we are not entirely satisfied with the Minister’s response, I shall offer a few comments in support now.
We may be missing an opportunity here. There has been a great improvement in blended and online learning over the past few years. A decade ago, I should have been sceptical about an amendment such as this. I should have still wanted almost to squeeze these children into the traditional model of education, which is of course what many of them are rebelling against, and which has failed to meet the needs of many of them. Having visited places like Red Balloon and talked to people who have now become proficient in online and alternative ways of supporting these children, I think the time has come when we ought to acknowledge that it could provide a very important, successful form of education for children whom we have failed in the past. I might not have thought of its fitting into this Bill, but it is an ideal place to acknowledge the growing importance that online and alternative methods of learning are playing in our education system. We ought to seize that opportunity.
My second point is that this fits in with two important aspects of the Government’s education policy. The first is the change needed in the IT curriculum for children in formal education, which the Government have done well to acknowledge. In doing so, they seem to acknowledge that changes in IT and learning are here to stay, and that we need to seize ways—of which this is one—to acknowledge the importance of information technology and digital learning in our education system.
The second, more obvious, fit with government policy is that this is an alternative to mainstream education. Among all the alternative provision, such as free schools, about which I have serious concerns, I see this as finding a way to let innovative education play its part in the education of children—something that we are not good at doing. Whereas I am sceptical about a lot of the ways that the Government are finding to put that innovation into the system, I wish they would seize this. If they were to look seriously at this amendment and touch base, they might see in it, for some children with special educational needs who are rebelling against mainstream education, and for whom mainstream education has never done a decent job, something which holds the key.
I look to the Minister for an acknowledgement of that, and either for this to go in the Bill or for a strong message to go out that this is a good thing which we ought to do all we can to support. Trying to read the Minister’s mind before she has spoken is difficult, but I hope that she is going to be sympathetic, if not in accepting this amendment, in giving a really clear signal that this is good, welcome and deserving of maximum support.
My Lords, I thank the noble Countess, Lady Mar, for highlighting this area. She has fought long and hard for those with ME, to whose situation she has made reference. In Committee, my noble friend Lord Nash clarified the Government’s position; that the majority of children and young people are best served by attending a mainstream institution. We had a key discussion on this earlier. We do, however, recognise that for some children and young people mainstream education is not appropriate, as both the noble Countess, Lady Mar, and the noble Baroness, Lady Morris, said. The education arranged for these individuals could indeed include the use of online provision as part of a blended package of support. Indeed, I understand that earlier this month, the Nisai Learning Hub was registered as an independent school that will provide alternative provision through a mixture of supported online and face-to-face learning.
Decisions on the use of such provision clearly need to take into account children’s and young people’s academic needs. It is also vital that their social and emotional development is supported, and that their health and safety are protected. Because of that, we believe that local authorities, mainstream institutions or special institutions should remain accountable for these decisions. However, to reinforce the point made by my noble friend Lord Nash in Committee, the provisions in this Bill do not prevent the use of alternative provision, including online and blended learning. I can reassure noble Lords that it can be included within an EHC plan, it can be funded by personal budgets and it can be part of the local offer used to support pupils without an EHC plan.
We appreciate that an underlying aim of these amendments is to highlight the benefits of online and blended learning for certain groups. The noble Countess, Lady Mar, and the noble Baroness, Lady Morris, made their case effectively and powerfully. We do not think that legislation is the appropriate vehicle to achieve this aim, but we shall reflect carefully on how the SEN code of practice and statutory guidance on alternative provision can better support informed decisions on this type of provision—decisions that are based on the best interests of the child or young person.
In doing so, we shall take into account the views of those groups facing particular barriers to mainstream education. The noble Countess highlighted some of these. To this end, I understand that my honourable friend the Minister for Children and Families has agreed to meet the noble Countess, Lady Mar, to hear experiences of the support needed for children and young people with ME. I hope that will be helpful to both sides. I should like to acknowledge the work of the noble Countess, Lady Mar, in supporting the cause of people with this condition.
I hope I have reassured the noble Countess and the noble Baroness that there is sufficient flexibility within the current arrangements to allow for the use of high-quality alternative provision, including online and blended learning, where it is in the best interests of a child or young person. Where there are restrictions, we believe that they offer vital safeguards in relation to the education, wider development and safety of pupils. We shall, however, look at how guidance can be improved so that decisions on the use of online provision are focused on the individual’s particular needs—that is at the heart of this. I therefore urge the noble Countess, Lady Mar, to withdraw her amendment.
Amendment 25 withdrawn.
Amendments 25A to 25D
25A: Clause 27, page 22, line 43, leave out “special educational” and insert “educational provision, training”
25B: Clause 27, page 22, line 44, after first “for” insert “—
25C: Clause 27, page 22, line 45, at end insert “, and
(ii) children and young people in its area who have a disability.”
25D: Clause 27, page 23, line 2, leave out “special educational” and insert “educational needs, training”
Amendments 25A to 25D agreed.
Consideration on Report adjourned.