Grand Committee
Children and Social Work Bill [HL]
(8 years, 5 months ago)
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The Deputy Chairman of Committees (Lord Bichard)
My Lords, welcome to the Grand Committee. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Clause 12: Functions of the Panel
Amendment 105
Lord Ramsbotham
“a “place of detention” means police custody, the prison estate, mental health detention, immigration detention and military detention;”
Lord Ramsbotham (CB)
My Lords, I am aware that my noble friend Lady Meacher and others have indicated their intention to oppose the proposition that Clauses 12 and 13, to which my amendments in this group refer, should stand part of the Bill. In advance of that debate, I will offer a brief explanation of what my amendments are designed to ensure.
Amendments 105 and 107 are linked to Amendment 135, which was tabled on Monday by my noble friend Lady Howarth of Breckland, in that they relate to a specific recommendation in the recent UN Rights of the Child report that the United Kingdom should ensure automatic review of child deaths in institutions. Amendment 105 is a description of what is meant by a place of detention, to which Amendment 107 refers. If my amendments are accepted, Amendment 105 should appear in new Section 16B(9), after Amendment 107, which will appear in new Section 16B(8) —to thoroughly confuse the Committee.
Like my earlier Amendment 92A, Amendment 109 is designed to bring existing statutory guidance into primary legislation. Noble Lords will recall the very disturbing footage of the physical and emotional abuse of children in Medway Secure Training Centre broadcast in a BBC “Panorama” programme in January of this year. The Ministry of Justice’s usual response to such allegations is to convene an in-house National Offender Management Service panel, which is not the same as a national Child Safeguarding Practice Review Panel.
During my time as Chief Inspector of Prisons, this was exemplified by the refusal of successive Home Secretaries to allow judicial review of the circumstances leading to the murder in Feltham of a young prisoner, Zahid Mubarek, by a known racist psychopath, until ordered to do so by the Law Lords then sitting in this House. This resulted in 78 recommendations for future improvement, plus the naming of 28 individuals who had failed in their duty—serious matters that might otherwise have remained hidden. Both incidents show why it is so important that the new arrangement, and this legislation, should include children in places of detention.
Amendment 109A is designed to ensure that concerned individuals and organisations have a channel through which to share significant information. The amendment allows for boundaries for public notification to be set by statutory guidance in order to protect the national panel from inappropriate referrals.
Finally, Amendment 110 clarifies that a regulated setting, in respect of a local authority’s duty to notify the Child Safeguarding Practice Review Panel of a child’s death, includes places of detention, as listed in Amendment 105. I beg to move.
Baroness Walmsley (LD)
My Lords, my Amendment 106A is in this group. It was Amendment 108 but for some reason has been retabled. The arrangements for the national review panel appear to omit its opportunity to review cases of serious mistreatment and/or physical injury caused by restraint in youth custody institutions or other kinds of institutions. This amendment makes it clear that these cases should be looked at by the panel because they raise serious issues of national policy and practice. I do not think that it should be restricted to just deaths in custody, as suggested by my noble friend Lord Ramsbotham, although I fully support what he said about that.
The noble Lord, Lord Ramsbotham, referred to the BBC “Panorama” programme about the Medway Secure Training Centre. Reports obtained through Freedom of Information Act requests reveal that children in custody suffered serious physical injuries following restraint on three separate occasions in 2013-14 and on four separate occasions in 2014-15. As the noble Lord, Lord Ramsbotham, mentioned, Ministers will often refer to the National Offender Management Service. But that is not a safeguarding panel. One of 10 recommendations made by Her Majesty’s Inspectorate of Prisons, following its review of the new system of restraint in child custody, urged more effective independent oversight of restraint by local safeguarding children boards and local authorities.
The Government have tabled an amendment to abolish LSCBs, which makes it even more important that this new arrangement of a national panel includes harms to children in custody and other institutions, not just deaths. This matter is of a very serious nature and is not really suitable for review at local level. The children in these institutions are often not located in their home authority, so it is essential that the new national panel looks at these cases—unless, of course, these clauses do not eventually stand part of the Bill, which will be debated later.
Baroness Meacher (CB)
My Lords, I must first apologise that I was unable to be present when my opposition to Clause 11 was debated. Unfortunately, I have a serious family health problem which has prevented me from being present or even doing any work on this Bill until today, I have to confess. I will speak briefly to oppose the proposition that Clauses 12 and 13 should stand part of the Bill. I assure the Minister that the aim here is not to have the clauses struck out but to provide an opportunity to explore the implications of the two clauses as they are worded and to enable noble Lords to raise any general concerns ahead of Report.
I recognise the need to establish a stronger statutory framework that will introduce greater accountability for the three key agencies involved in safeguarding children—local authorities, the local police and the local health service, as proposed by Alan Wood—though I understand that there are concerns that other services should also be incorporated. However, the single purpose of a new framework, as made clear in new Section 16B(2), is absolutely rightly specified as,
“to ascertain what (if any) lessons can be learned from the case about the way in which local authorities or others should work to safeguard children”.
I hope we can explore how, in drawing out and disseminating the lessons from tragic events, we as a society can avoid increasing the blame culture, which has affected social workers and other public servants so severely in recent years. If we do increase the blame culture, the risk is that good social workers and other public servants will walk away from their jobs, as many public servants have done in recent years; others will simply not take up these professions; and the net result will be that the risks to children will increase rather than diminish. I know that that is absolutely not what the Government want to achieve—but there is a very serious point here, which I hope the Government will take on board.
If a social worker working with a family where a child unfortunately dies or is severely injured does fall short in some way, it is surely a matter for that social worker’s managers. It should not be a matter for national politicians and a national panel—whose role, as the Bill makes clear, must be solely to ensure that lessons are learned and disseminated. At a national level, the worst of all this is what happens when the media get involved—and they will get involved: they just do. That can wreck the lives of front-line workers to the point from which, to some degree, they never recover. I really do believe that it is that bad.
The review will of course need to establish whether any failings were a reflection of procedural issues, system failures or a lack of adequate resources. All of that is right and proper, but somehow we need to protect the individuals, not from proper disciplinary action or whatever is appropriate but from this national glare and utter devastation of their lives. If they have made an error, they probably did not intend to. So we have to get this right. It is terribly important that we do and I do not believe that the wording in the Bill achieves that at the moment.
Subsection (4) of new Section 16B inserted into the Children Act 2004 by Clause 12 requires the panel to publish the report on supervised child safeguarding in practice reviews. Alternatively, subsection (5) states:
“If the Panel consider it inappropriate to publish the report, they must publish any information relating to the lessons to be learned from the case”.
Is it really ever necessary or appropriate to publish a whole report on a specific case, which would inevitably involve publishing material about an individual front-line worker? The only national interest is in the lessons to be learned—the material that would be published under subsection (5). So I would welcome the Minister’s view as to whether subsection (4) could be deleted from the Bill. This would focus the minds of members of the panel on their sole role. It would also go some way to reassuring front-line staff that the Government are not aiming to focus national media and political attention on blaming an individual front-line worker. That is the key point that I hope we can think about in relation to these clauses.
My other point is a concern of the Local Government Association that the national panel, as outlined in the Bill, is too closely controlled by the Secretary of State. Again, this risks politicising the serious case review process, and the concern is again for the protection of front-line staff. But it is also very important to ensure that all the lessons are learned from these reviews, so it is absolutely vital that these reviews are seriously and really independent of government control. A review may need to comment on the impact of national policies on safeguarding failures and make recommendations for policy reform as well as procedural changes that are needed.
The Government have tabled Amendment 114, which risks placing too great an emphasis on the actions of individual practitioners in determining the cause of failures. We need to maintain the systems approach that we have had when undertaking these reviews. A focus on an individual’s failure in a particular area will have no relevance to the authorities in other parts of the country. Will the Minister look at the wording of Amendment 114 with this concern in mind?
The NSPCC has questioned whether it is right to limit the role of the national review panel to those cases that involve a death or serious injury, as raised by the noble Baroness, Lady Walmsley. With the focus clearly on lessons to be learned, it may be important to include cases involving near misses or areas where a lot of children have suffered some harm. It may help to clarify that in the Bill.
Finally, it seems important to clarify further the dissemination activities that will be required of the panel. Somehow this business of learning the lessons seems to be somewhat skated over. The Bill needs to make absolutely clear how this country will learn from these serious cases. That is what the panel needs to do.
Lord Watson of Invergowrie (Lab)
My Lords, we are content to support the amendments in this group that were ably moved and explained by the noble Lord, Lord Ramsbotham, and the noble Baronesses, Lady Walmsley and Lady Meacher. I wish to comment on Amendments 105 and 107. The noble Lord, Lord Ramsbotham, when discussing the rights of the child in this Committee recently urged the Government to ensure the automatic review of child deaths in institutions. The two amendments in the name of the noble Lord, Lord Ramsbotham, would ensure that that continued to happen.
I am sure all noble Lords will have received a six-page letter from the Minister this morning, looking at what we have done on the Bill so far. The last page of the letter refers to the United Nations Convention on the Rights of the Child, on which he seeks to give reassuring commitments that the Government are indeed moving forward in a number of fields with regard to the rights of children.
Lord Watson of Invergowrie
None the less—I understand the laughter from other noble Lords—there are interesting developments on my side of the fence, too. The Committee will forgive me for not commenting on that.
What the Minister said in his letter was reassuring. None the less, the amendments of the noble Lord, Lord Ramsbotham, would ensure an automatic review of child deaths, which obviously is a serious matter that I do not mean to treat lightly at all. Those are the two amendments that I wanted to specify, but all the amendments listed would strengthen the section of the Bill. For that reason, as stated earlier, we are pleased to support them.
As noble Lords will know, my noble friend Lord Hunt is a signatory to the proposal to oppose the question that Clauses 12 and 13 stand part of the Bill, and it is to this that I now wish to speak. We have concerns about the manner in which the functions of the Child Safeguarding Practice Review Panel are to be established. Clause 12(1) states that the Secretary of State shall have power delegated to her to decide what the functions of the panel shall be. The functions are not set out in any detail; the Secretary of State is to be given the right to decide how the functions are to operate. The Delegated Powers and Regulatory Reform Committee stated in its report on the Bill:
“The arrangements made by the Secretary of State will determine more precisely how those functions are to be exercised, and will accordingly play a significant role in shaping what the Panel is required to do and how it is required to do it”.
The committee goes on to say that as a result, it believes that the arrangements made by the Secretary of State should be contained in a statutory instrument subject to the affirmative procedure. So do we, which is why we believe Clause 12 must be strengthened.
We also have objections to the guidance issued by the Secretary of State to the panel, as outlined in new Section 16B(8) in Clause 12. Again, our concerns are shared by the Delegated Powers and Regulatory Reform Committee, which commented that as the guidance clearly must operate hand in glove with the arrangements being made by the Secretary of State in relation to the panel, the guidance, too, should be subject to parliamentary scrutiny, this time by negative resolution.
The same could be said in respect of Clause 13 and the definition of “regulated setting”, relating to the death of a child. “Regulated setting” is not defined in the Bill, which the DPRRC regards as a major failing. The committee says:
“The definition of ‘regulated setting’ is fundamental to determining the scope of a local authority’s duty to provide information about cases”,
within this section of the Bill. That gives the Secretary of State unlimited discretion to determine what falls within the definition, and the committee goes on to say that the delegated power conferred by Section 16C(3) of the Children Act 2004 is inappropriate in providing for the definition of “regulated setting” to be set out in regulation.
More seriously—not least, I suspect, for the Department for Education—the committee proceeds effectively to rubbish the department’s claim that:
“This is a narrow power which will only provide for a list of regulated settings, not raising matters of substance which the House will need to debate”.
The Delegated Powers Committee does not just describe that power as a wide one; it concludes that it is a Henry VIII power, which means that it should be subject to affirmative procedure.
The number of delegated powers contained in the Bill was the subject of some dispute, shall we say, between noble Lords and Ministers at Second Reading. Doubtless we could schedule a separate debate in Committee to resolve just how many there are but, with the exception of the Ministers, every noble Lord who has taken part in debates on the Bill will agree that however many there are, there are too many.
The definition of a Henry VIII clause is of course one that seeks to amend primary legislation by secondary legislation. I cannot resist quoting the comments of the noble and learned Lord, Lord Judge, who spoke strongly against such clauses when he was Lord Chief Justice. He stated:
“You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. William Pitt warned us how to treat such a plea with disdain. Necessity is the justification for every infringement of human liberty: it is the argument of tyrants, the creed of slaves”.
That may be just a little strong for this Bill but the message is quite clear. There are more egregious examples elsewhere in the Bill of the abuse of parliamentary procedures through secondary legislation—but, for the reason I have outlined, we believe that the definition of “regulated setting” has to be on the face of the Bill.
As was stated in Committee last week, there are concerns over the establishment of the Child Safeguarding Practice Review Panel, partly because of the fear that it could be used to blame, or perhaps even scapegoat, social workers if a high-profile local case is referred to the new national panel without full knowledge of the local elements of the case. That is why the greatest attention must be given to defining the arrangements and functions of the panel as clearly as possible and, where they cannot be placed on the face of the Bill, to ensuring that there is adequate parliamentary scrutiny of those aspects of the Bill. For these reasons, we do not believe that Clauses 12 and 13 should stand part of the Bill.
Baroness Pinnock (LD)
My Lords, I support everything that previous speakers have said about both the amendments and in opposition to Clauses 12 and 13. During our last day in Committee, I made the case that in principle the proposal for the national safeguarding panel failed because it did not take sufficient account of local accountability, local knowledge and local professionals who have a duty to safeguard children in their area. The Wood report, from which a lot of the changes proposed by the Government come, is clear on some of these issues. One factor that it picks out in its analysis of local safeguarding children’s boards is that a review by the Local Government Association found,
“dissonance among the partners between the accountability and the authority of an LSCB”.
The report goes on to say that,
“the duty to cooperate has not been sufficient in ensuring the coherent and unified voice necessary to ensure multi-agency arrangements are consistently effective”.
So from the Wood report we hear that local accountability is one issue that has been raised. The LSCBs are not sufficiently accountable locally, and that has, in part, led to their lack of effectiveness.
The proposals in these clauses move power and accountability, in the most serious cases, from the local to the national level and put it in the hands of the Secretary of State. I think that that places too much power at the national level and not enough locally, and it is also in danger of politicising the whole process, reflecting what the noble Baroness, Lady Meacher, said, with which I totally agree. The lack of elected representation on the current safeguarding boards has resulted in them being ineffective. Currently, the boards consist of professionals and there is no full representation of non-professionals—that is, elected representatives—who are also corporate parents. It seems to me that a lack of challenge from non-professionals, who are corporate parents, has contributed to this lack of effectiveness of the safeguarding boards.
I will make a further comment, which is reflected in the Wood report, about the membership of the local boards and the duty to co-operate. The Government’s proposals in later amendments would remove the requirement for some of the professional organisations to be members of the local panels. One of those, the probation service, has in my council area—I draw the Committee’s attention to my entry in the register of interests as a local councillor in the Borough of Kirklees—since the fundamental changes to the service not attended the local safeguarding children boards. The later government amendments remove that requirement. It is a big mistake not to require the probation service to attend to discuss safeguarding children.
Clause 12, which lays out the functions of the new national panel, falls far short of what is required. Let us consider what has happened with serious case reviews over the past 30 years—probably and sadly—from the Climbié and Baby P reports to the many, many others that we can all draw to memory. They have all issued recommendations to which everybody has agreed but which no one has implemented effectively. Everyone says, “These are good; we must do that”, but they are not implemented.
The big failure in Clause 13, which is why I will oppose it standing part, is that nowhere does it say how learning will be effectively implemented. We can all learn, and social workers across the country will have read the 48—I think—recommendations in the Baby P report, but implementing them is the difficult bit. The Wood report refers to that and makes a powerful case for thinking in much greater detail not about the learning—the learning has been done—but the implementation. In all these cases, similar recommendations are made about the need to co-operate and the lack of collaboration and communication. We have yet to crack how to put that into effect.
If we are serious about child protection and safeguarding children, one element which must feature is how the recommendations are to be put into effect, monitored and reviewed. If we do not do that, we will never move forward. That is my fundamental reason for supporting the proposition that Clauses 12 and 13 should not stand part of the Bill.
Lord Mackay of Clashfern (Con)
My Lords, I strongly support what has just been said. Over the years—it goes back quite a long way—there have been very serious cases of child injury and, sadly, in most of the cases, child deaths. There has been no shortage of inquiries. All sorts of very distinguished people have been asked to inquire into the situation. As the noble Baroness, Lady Meacher, said, there is always a focus on the individual social worker. Managers somehow stand a little back from the situation to let the light shine on the individual. That is a natural protection that management is apt to have and one that we must think about.
I strongly support the view that any number of lessons have been learned, in the sense that reports have told us what was wrong and what should be different. But I know of absolutely no mechanism to make sure that these recommendations are acted on and that something actually happens. We have only to look at some of the earliest reports in relation to this to see that very clear recommendations were made. The report is published, the public and the press comment on it—and then it is forgotten until the next one. Surely if we are to set up a national body of this sort, we should incorporate within it a clear mechanism for bringing the recommendations forward for implementation.
Lord Warner (Non-Afl)
Will the Minister think about a very simple question? If you take powers to bring things up to national level and away from local level, I suggest that you then have an obligation to monitor what happens to the output from that new national body and to account yourself for whether anything has been implemented. Can the Minister explain to the Committee a little more about how that aspect of all this is going to work?
The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)
My Lords, in this group Amendments 105, 107, 108, 109, 109A and 110 concern places of detention, serious child safeguarding cases and serious harm. I am grateful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Baroness Walmsley, for these amendments. I particularly thank the noble Lord, Lord Watson, for his very encouraging opening remarks—but I understand that the new Prime Minister will not be in No. 10 until Wednesday evening, so noble Lords will probably have to put up with us at least until then.
Before I turn to these amendments, I confirm that I would be delighted to convene a meeting to give noble Lords more detail on the Child Safeguarding Practice Review Panel. A meeting was specifically requested at our last Committee session by the noble Lord, Lord Warner, and the noble Baroness, Lady Pinnock, but the invitation obviously extends to all noble Lords.
I will begin with Amendments 105, 107 and 110 concerning places of detention. I had hoped that I had reassured noble Lords about the independence of the Child Safeguarding Practice Review Panel at the end of the last Committee sitting—particularly the noble Lord, Lord Watson, and the noble Baroness, Lady Howarth, who raised these concerns. As I said then, the establishment of a strong, independently operating national panel is essential. Because of its independence, the panel will have the autonomy to use its judgment about the circumstances in which it deems it necessary to carry out a national review, although we intend to provide guidance that will aid its decision-making in this regard. I assure the noble Lord that we will take particular care to reflect on the importance of children held in detention, and to consider carefully the ways in which the guidance for the panel reflects not just the deaths of children, but children who have been abused or neglected.
The existing 2015 statutory guidance, Working Together to Safeguard Children, sets out that a serious case review should always be carried out when a child dies in custody, in police custody, on remand or following sentencing in a young offender institution, a secure training centre or a secure children’s home. The same applies where a child dies who was detained under the Mental Health Act. We will want to consider carefully how any new guidance produced for the panel takes this into account, bearing in mind the panel’s basic functions of the panel.
On Amendment 109A, I can assure the noble Lord, Lord Ramsbotham, that anyone may notify the panel of serious events in institutional settings, or indeed of such events in any place. Clause 13, as drafted, deals with requirements on local authorities but does not prevent others making direct notifications. In respect of the proposal to add a specific reference to guidance, I assure the noble Lord that Clause 12 already provides for the panel to have regard to any guidance issued by the Secretary of State in respect of its functions, and Clause 13 provides the same in respect of local authorities’ duty to notify. We will make it clear that others may notify the panel of events directly.
I now turn to Amendments 108 and 109. Amendment 108 seeks to add to the definition of serious child safeguarding cases by including specific reference to cases where physical injuries or harm are caused by unlawful or abusive restraint in any institutional setting. Amendment 109 seeks to broaden the scope of the definition of serious harm to include both ill treatment and the impairment of physical health. I agree entirely with the premise behind the amendments. However, inevitably, any such definitions cannot be exhaustive and include all circumstances, or cover all settings within which children might suffer injury or harm.
The definition in Clause 12 of serious child safeguarding cases includes reference to children who have been seriously harmed. This is based on the definition set out in the current safeguarding statutory guidance, Working Together to Safeguard Children, which was drawn up following consultation last year. The definition of serious harm includes the factors stated in subsection (9). The wording proposed is not intended to cover all scenarios. Great consideration was given to the factors to be included in the definition of both serious child safeguarding cases and serious harm for the purposes of the clause. It will be for the panel to consider each case in line with these definitions to identify serious child safeguarding cases and determine what form of review is required. We expect that to include cases where factors such as those outlined by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Walmsley, are a feature.
Clause 12 sets out the functions of the new panel. The panel will identify serious child safeguarding cases in England that raise issues that are complex or of national importance. The purpose of any such review will be to ascertain how practice by local authorities or others to safeguard children can be improved as a result of learning from the cases. I assure the noble Baroness, Lady Meacher, that this is about improvements in practice that can be disseminated nationally, not about the blame or public censure of individuals. Any disciplining of individuals will be done through the usual employment processes where they are working, or with reference to professional bodies, if needed. Reports on serious cases should not name individuals, whether they are professionals, children or family members. Writing reports in a way that ensures individuals are not named has been a long-standing convention in serious case reviews, and this should continue under the new arrangements. I assure the noble Baroness that the guidance will make this point absolutely clear.
As for her point about Amendment 114, we will come to it in detail in two groups’ time.
Baroness Meacher
I am aware that this practice has gone on—you have anonymity, and so on—yet somehow the media or national politicians get the names of the front-line people and their lives are wrecked. Therefore, there needs to be very clear separation of those matters that remain local and do not find their way up to the national panel, national politicians and the rest of it, most particularly the media. I hope that the Minister would be able at least to reflect on that or perhaps give us some reassurance. As for keeping anonymity, the media know jolly well how to find out people’s names—they crawl around, as the Minister well knows. We need procedures and practices that make very clear the single objective of the national panel—to learn lessons and disseminate—and that it does not need all the information about an individual. Somehow, a wall needs to be created to safeguard those people, otherwise we will not have front-line staff.
Lord Nash
I will reflect and look into that in more detail. Once it is in the public domain that a particular instance is being investigated, knowing the media, however much you try to protect an individual’s identity, I cannot see quite how one can do it—but I will certainly look at it. The noble Baroness raises a very important point which we are aware of.
I should add that the Government have now responded to the Delegated Powers and Regulatory Reform Committee, in answer to some of the points made by the noble Lord, Lord Watson. The response confirmed the Government’s intention to bring forward an amendment at a later stage to modify the provisions to ensure that the arrangements to which the clause refers be subject to affirmative parliamentary scrutiny.
Lord Nash
Yes is the answer.
Clause 13 requires local authorities to notify the panel of events in their area where a child has died or suffered serious harm and is known or suspected to have suffered abuse or neglect. The clause will place the process of notifying such events to the panel on a statutory footing for the first time, demonstrating the importance that the Government attach to this process and leaving no room for doubt as to whether to report an incident.
If this part of the process is not made a statutory duty on local authorities, there is a risk that some events may not be notified, thereby reducing the likelihood of events being scrutinised and action taken to reduce the likelihood of such an event taking place in future. The DPRRC also commented on this clause in its report. The Government’s response to the report confirms an intention to look again at the definition of regulated setting, as well as agreeing that any future amendments to the definition should be by the affirmative procedure. We intend to return to this matter at a later stage.
The noble Baroness, Lady Pinnock, asked about the importance of taking into account local issues. The panel will make its decision on the basis of information from local areas. It will include the probation service in the list of relevant agencies. We will come shortly to a set of government amendments that respond directly to Alan Wood’s recommendations on local accountability. If I may, I will cover the rest of her points then.
She also asked a very good question, supported by my noble and learned friend Lord Mackay, about how learning will be implemented. Our whole reform to social work and the point of the national panel is to improve implementation. Our new What Works centre for children’s social care will have a key role in disseminating learning and making sure that it is acted upon. As under current arrangements, local safeguarding will be expected to report on practice improvements identified through the reviews and on action taken in response.
My noble and learned friend Lord Mackay commented on the guidance. I will not talk about guidance in general, but we have significantly reduced the statutory guidance on child protection in the past five years, and we keep it constantly under review. I hope that the explanation of Clauses 12 and 13 provides reassurance about the Government’s intentions, and I therefore urge the noble Lord and the noble Baroness not to press their amendments.
Baroness Walmsley
For the sake of an accurate record, may I point out that Amendment 108, referred to by the Minister, was retabled as Amendment 106A?
The noble Lord suggested that the national panel would have the discretion to choose whether to investigate situations such as those described in my amendment involving,
“harm caused by unlawful or abusive restraint in any institutional setting”.
If we eventually have a national panel, this is exactly the sort of situation they should look into, because it is a matter of national policy and because children in such institutions come from a range of different local authorities. Despite the guidance, very often they are not located in their home authority. My point is that these cases should be investigated by the national panel on all occasions; it should not just be left to its discretion.
Lord Ramsbotham
I am grateful to the Minister for his carefully considered response. I just hope that between now and the next time we meet, there will not be a fourth huge volume of government policy for us to consider during the passage of the Bill. I am sure it is very reassuring to think that the Department for Education is producing all this stuff, but I must say that it would have been helpful to have had it before we began our deliberations, rather than having it fed in during Committee.
When the noble and learned Lord, Lord Mackay, was speaking, I could not help but reflect on my hopes when we introduced the corporate manslaughter legislation. I hoped that it would provide the stick to make certain that the outcomes of such investigations were taken seriously. But nothing has yet happened to bring corporate manslaughter charges against the managers under whom these unnatural deaths have taken place. It is something that is worth considering.
I was going to comment on my noble and learned friend Lord Judge’s remarks in the discussion on Clause 15. But, as the noble Lord, Lord Watson, mentioned his comments on the regulation, I will repeat what I said at Second Reading. I quoted the noble Baroness, Lady Smith of Basildon, who, during the debate on the balance of power between the Government and Parliament, said of this Bill that there were,
“more provisions for the Secretary of State to use regulations than there are clauses in the Bill, including on issues that should be considered matters of significant policy”.—[Official Report, 9/6/16; col. 860.]
I also quoted my noble and learned friend Lord Judge, who, in addition to making some devastating comments about the increasing number of Henry VIII clauses in current legislation, highlighted the number of them in this Bill and asked,
“when are we going to actually achieve something before our ... arrangements disappear into some vague unknown future?—[Official Report, 9/6/16; col. 875.]
I must admit that I am extremely alarmed at the number of them in the Bill, not least because the impact assessment on the Bill states:
“The Bill’s contents have been reviewed and ruled out of scope for the regulatory impact assessment exercise”.
To my mind, nothing could be more inappropriate because the regulatory impact assessment really needs to be carried out in spades on this Bill, as many noble Lords have said.
I am grateful to the Minister for offering his meeting on the national safeguarding panel, to which I look forward. In the meantime, and until Report, I beg leave to withdraw my amendment.
“( ) The Panel may enforce the duty under subsection (2) against the person or body by making an application to the High Court or the county court for an injunction.”
Lord Nash
My Lords, I will speak to this amendment, which enables a request for information by the Child Safeguarding Practice Review Panel to be enforced. It is essential that the panel is able to request information to enable it to perform, or assist it in performing, its functions. This may also include normally privileged information, which is frequently an integral part of what has to be considered as part of the review process. This is already set out in Clause 14.
This amendment enables the panel to apply to the court for an injunction, should a person or body refuse to comply with a request by the panel for information. In the case of normally privileged information, the panel will consider the reasons for that. It may ask the person or body to justify any refusal, but may ultimately compel that information to be provided. As previously discussed, however, this provision would not apply to the judiciary, whose independence is a constitutional matter.
The Wood review highlighted the critical importance of effective and speedy sharing of information and data in relation to protecting and safeguarding children. This clause will underline the importance of sharing relevant information with the panel, backed up with the power of enforcement. I beg to move.
Lord Warner
My Lords, we had a good go over the issue of the judiciary on our last Committee day. The Minister slid very quickly over this particular issue in his remarks—namely, that judges are exempt. Can he pray in aid what the provisions are that stop a review panel looking at the conduct of a judge? We spent a lot of time on the case of Ellie Butler, but that was clearly a case where the practice of the judge could be called into question—not just on the individual circumstances but on the systems issue of whether the judge could actually replace social workers who had been protecting the child for some period and bring into being a new review of the child’s circumstances by a set of private social workers, for whom the child was a new client. That is a systems issue; it is not just about the judgment of the judge but about a piece of practice that seems to me to be at least arguable. Why, in that set of circumstances, should the judiciary be exempt from review by this panel?
Lord Hunt of Kings Heath (Lab)
My Lords, I have just picked up the debate we had in Grand Committee on 6 July, when the noble Lord, Lord Warner, raised the issue of legal and medical privilege. Then the noble Lord said he did not think that anything needed to be added to the Bill, although he recognised that guidance would need to be given to the panel in respect of the information it requests.
I assume that there will now be a considerable time between Committee and Report. I understand that this is a very complex matter. The question of the independence of the judiciary is clearly paramount; equally, my noble friend has made an important point about the need for the panels to obtain relevant information. So, rather than a quick letter, I hope that the Minister will agree to consider this important matter in some depth.
“Local arrangements for safeguarding and promoting welfare of children
After section 16D of the Children Act 2004 (inserted by section 14 of this Act) insert—“Safeguarding partners for local authority areas16E Local arrangements for safeguarding and promoting welfare of children(1) The safeguarding partners for a local authority area in England must make arrangements for—(a) the safeguarding partners, and(b) any relevant agencies that they consider appropriate,to work together in exercising their functions, so far as the functions are exercised for the purpose of safeguarding and promoting the welfare of children in the area.(2) The arrangements must include arrangements for the safeguarding partners to work together to identify and respond to the needs of children in the area.(3) In this section—“relevant agency”, in relation to a local authority area in England, means a person who—(a) is specified in regulations made by the Secretary of State, and(b) exercises functions in that area in relation to children;“safeguarding partner”, in relation to a local authority area in England, means—(a) the local authority;(b) a clinical commissioning group for an area any part of which falls within the local authority area;(c) the chief officer of police for a police area any part of which falls within the local authority area.””
Lord Nash
My Lords, I would like to speak at some length to Amendments 113 to 120, and I will include Amendments 133 and 134 as they are related but purely technical amendments.
Amendment 113 is central to the new arrangements. It requires the safeguarding partners, namely the local authority, chief officer of police and clinical commissioning groups to work together, along with the agencies they consider to be appropriate, to make arrangements to exercise their functions to safeguard and promote the welfare of children in the area. These safeguarding partners must also make arrangements to identify and respond to the needs of children in the area.
In May this year, the Government published the Wood review into the role and functions of LSCBs. This review, through extensive consultation, identified the key role of local authorities, police and health services in the safeguarding and welfare of children. The review found that without the agreement and full collaboration of these three bodies, the strategic decisions necessary to underpin effective practice cannot be taken. The new clause gives these key safeguarding partners the flexibility to determine which other relevant agencies they need to work with, and to decide how they can work together most effectively to identify and respond to the needs of children in their local area.
The new clause will allow the Secretary of State to specify in regulations the agencies which exercise functions in relation to children. This will, of course, include relevant agencies such as schools, youth offending and justice agencies and a range of others which exercise functions in relation to the welfare of children. The key change here compared with existing arrangements is that local areas would decide which agencies to involve and in what ways, rather than having a list imposed on them by central government. We intend that statutory guidance will specify that the safeguarding partners will be expected to consult locally before making the arrangements.
Evidence suggests that too many local safeguarding children boards are currently ineffectual and that significant reform is required. The Wood review found that the organisational boundaries between local authorities, police and health services too often act as a barrier to effective multiagency working. This provision would place upon these three key safeguarding partners an equal responsibility to work together. It will enable their vital contributions towards the safeguarding and promotion of the welfare of children to be better co-ordinated and deployed, and reduce the duplication of existing work. It will provide greater flexibility for local areas to arrange their services according to local assessment and agreement.
Amendment 114 sets out the requirement on safeguarding partners within a local authority area to carry out local child safeguarding practice reviews. This proposed new clause links closely to Clauses 11 to 14, which set up the independent Child Safeguarding Practice Review Panel and a system of national reviews, and sets out a requirement for the safeguarding partners to make arrangements for local reviews. Most reviews into serious cases will take place at local level. Safeguarding partners will identify serious child safeguarding cases which raise issues of importance for that area and supervise the review of the cases as they so determine. The primary focus of such reviews will be on how practice by local authorities or other local bodies can be improved as a result of the case. If the safeguarding partners identify a serious child safeguarding case which they think may raise issues that are complex or of national importance, or where it becomes apparent that a case raises such issues, they will be free to refer it to the Child Safeguarding Practice Review Panel.
Baroness Pinnock
I thank the Minister for his very detailed explanation of these amendments, which are aimed at putting in place new arrangements for local safeguarding children boards. I have a number of questions and would be grateful if the Minister could respond to them so that I can fully understand and appreciate the implications of what is being proposed.
First, I thank him for his assurance about local accountability. However, one element is not specifically referred to in the detail that he gave about the composition of the new panels, and that is whether the panel could include local elected representatives. I referred to this in a previous discussion and raise it again because the safeguarding boards currently consist of professionals—for example, social workers, the police, health service workers and members of the probation service—but no non-professional, on the basis of local knowledge, can challenge what goes on. Such a challenge from a non-professional standing up for local people is very important in terms of safeguarding, even more so as local elected representatives have a duty as corporate parents and they are judged on how they fulfil that role. I think that the addition of non-professionals would enhance the status of the panel. It would be not just a collection of professionals taking responsibility but a collection of professionals plus some local representation saying, “This is not good enough. What are you going to do?”. They could do that if they were effective local representatives, and I would like to hear what the Minister has to say on that.
I turn to my second query. I totally understand the proposals for greater flexibility in composition and geographic areas, and so on. In principle I do not have a problem with that because the Wood report says, and my own experience tells me, that the current arrangements can become a bit bureaucratic—a case of going through the motions, rather than dealing with the issues. For me that is not an issue but, from what I heard the Minister say, under the new arrangements there will be three statutory representatives—from the police, the health service and local authorities—and they will consult on what other representation there should be, which is welcome. My query concerns whether any additional members from those organisations would be required to attend or whether they would just be asked to attend.
Lord Hunt of Kings Heath
My Lords, that was an interesting contribution by the noble Baroness, Lady Pinnock. I particularly wish to pick up the issue of challenge. Whether or not it is right for local authorities to be members of these bodies is one thing, but I have no doubt that the issue of challenge is a very important one. I would like to hear from the Minister about how we ensure that that takes place.
First, on the issue of bringing these together in areas larger than one single local authority, like the noble Baroness, Lady Pinnock, I consider that if this is a sensible approach to deal with some of the current boundary issues, that is fine. However, if there were an underlying view within the department that we had too many and it wanted them to be reduced in large numbers—central government departments often believe that—then I would worry. Ideally, we want one local authority to be seen to be responsible, rather than a number of them. The whole argument for bringing in these new arrangements, particularly in relation to Amendment 113, is to streamline the process so that there is much clearer accountability. I hope that we are not going to lose that straightforward accountability because we think we need to make it much easier for chief constables to be able to discharge their responsibility.
My second point is this. I have no objection to the formulation of safeguarding partners and their ability to invite any other relevant agencies that they consider appropriate. I took the point made by the noble Baroness in an earlier debate about the boards of probation officers. However, I ask the Minister: when those are set up, could his department actually monitor who the safeguarding partners designate as relevant agencies so that we can at least keep track nationally of what is happening? If we found that the probation services were not really part of any of these bodies at local level, I would begin to worry.
Thirdly, I have a question on Amendment 119, which mentions guidance. Will the Minister explain the status of that guidance—is it advisory or is it statutory?
Lord Warner
My Lords, could I ask a number of questions, particularly in relation to Amendment 116, on information? Before doing so, I will leave the noble Lord with a thought about my experience of local safeguarding boards in Birmingham, when I was the Children’s Commissioner there. A common feature of that board, which covers a very big area—I suspect it is a common feature of many other of those boards—was that often there was no consistency in who turned up for the meetings between the different agencies. There is a moving cast of characters turning up at these boards on behalf of particular agencies. Unless we can ensure greater consistency, we will not make those boards more effective.
On Amendment 116, I am not sure whether the Minister knows that some of us have been involved for a very long time—it seems as though it is since Adam and Eve—in trying to get the public agencies to accept a common identifier for children. If we want information to flow smoothly and quickly between agencies for children, particularly those who are at risk and in the child protection system, we need to listen to some of the people who have been working on this, such as Sir Cyril Chantler, an eminent paediatrician often used by the Government to undertake inquiries, to progress that. If you talk to paediatricians who have been involved in this area, the common villain of the piece—I use the term loosely—is the Department for Education, which simply will not accept that the NHS identifier is the best one to use because all children have one. Will the Minister take this back to his department and have another go? If he wants information to flow smoothly in child protection cases between the agencies, let us move towards using the NHS number as a common identifier. I assure him that that will get the information moving much faster through all the agencies concerned.
Baroness Tyler of Enfield (LD)
I shall add one more question to those posed by this very important set of amendments about how to improve local arrangements and have more effective multiagency safeguarding. I can think of nothing more important than that this works.
When I looked again at Alan Wood’s very interesting report, I saw two sentences that so far have not been picked up in this debate. They read:
“I would also add that national government departments do not do enough to model effective partnership working between themselves for local agencies. The join up demanded of local partners is not particularly evident at national level”.
For the new arrangements to work, and it is critical that they do, it is vital that government departments are modelling more effective collaboration in the area of safeguarding. I would be grateful to the Minister if, when he responds, he could tell us what steps government departments are taking nationally to model this behaviour.
Lord Nash
My Lords, I am grateful for this debate. On the points raised by the noble Baroness, Lady Pinnock, local arrangements may include elected representatives but this is a matter for local determination. On her second point, Amendment 113 gives the safeguarding partners flexibility to determine who the other relevant agencies are but, having determined that, those relevant agencies have to co-operate.
On the publication of annual reports, my answer says that this enables public scrutiny as it is transparent. As for the point made by the noble Lord, Lord Hunt, about how local areas organise themselves—the noble Baroness also asked about flexibility on the areas to align operational reach—I can confirm that the local authority area will be the key area and accountability will be to the local authority. It is designed to ensure flexibility within that structure but, to answer the noble Lord’s point, there is no hidden agenda. We are concerned here purely with the matter of improving child safeguarding.
The noble Baroness asked about monitoring progress and reviews. I already covered some of that in my answers about the What Works centre for children’s social care. The duty remains for local arrangements to report on their practice and action taken in response. The second question asked by the noble Lord, Lord Hunt, was who the safeguarding partner will designate as a relevant agency so that it can keep track of what is going on. I will certainly look at that. His third question was about Amendment 119 and whether the guidance will be statutory. It will.
The noble Lord, Lord Warner, made a point about Amendment 116 and a common identifier and whether we could not use the NHS identifier. Obviously, we want this to work well. That is an entirely new point to me; I will take it back and look at it in some detail.
Lord Hunt of Kings Heath
My Lords, as we are in Committee I say to the Minister that the latest report of the Delegated Powers and Regulatory Reform Committee has miraculously reached me and that it comments on his Amendments 113 and 115. It refers to two instances where the committee considers that the delegated power conferred in the amendments is inappropriate. I do not expect him to respond today, clearly, but I hope that between now and Report he will give that some attention.
Lord Nash
We are considering that report and we will respond in due course. On the point made by the noble Baroness, Lady Tyler, about national government departments modelling effective collaboration, we are indeed taking considerable steps to work together effectively, in particular with the Home Office and the Department of Health. In view of what I have said, I hope noble Lords will support the amendment.
Baroness Pinnock
In response to my question about local elected representation, the Minister said that that ability was currently there. Yes it is, but as observer status. If there is to be an opportunity to challenge it, the membership of that board needs to be on the same level. An observer status puts the individual in a much lesser category of importance on that body. In order to have elected challenge on the panel, they ought to be full members of the board.
Baroness Pinnock
I totally welcome that and thank the Minister for his response.
“Local child safeguarding practice reviews
After section 16E of the Children Act 2004 (inserted by section (Local arrangements for safeguarding and promoting welfare of children) of this Act) insert—“16F Local child safeguarding practice reviews(1) The safeguarding partners for a local authority area in England must make arrangements in accordance with this section—(a) to identify serious child safeguarding cases which raise issues of importance in relation to the area, and(b) for those cases to be reviewed under the supervision of the safeguarding partners, where they consider it appropriate.(2) The purpose of a review under subsection (1)(b) is to ascertain what (if any) lessons can be learned from the case about the way in which persons in the area should work to safeguard and promote the welfare of children.(3) Where a case is reviewed under the supervision of the safeguarding partners, they must—(a) ensure that the reviewer provides a report on the outcome of the review;(b) ensure—(i) that the reviewer makes satisfactory progress, and(ii) that the report is of satisfactory quality;(c) provide the report to the Secretary of State and the Child Safeguarding Practice Review Panel.(4) The safeguarding partners must publish the report, unless they consider it inappropriate to do so.(5) If the safeguarding partners consider it inappropriate to publish the report, they must publish any information relating to the lessons to be learned from the case that they consider it appropriate to publish.(6) The Secretary of State may by regulations make provision about—(a) criteria to be taken into account by the safeguarding partners in determining whether serious child safeguarding cases raise issues of importance in relation to the area;(b) the appointment or removal of a reviewer by the safeguarding partners, including provision for a reviewer to be appointed by the safeguarding partners from a list provided by the Secretary of State;(c) the time when a report is to be provided to the Secretary of State or the Child Safeguarding Practice Review Panel, or published;(d) the procedure for a review;(e) the form and content of a report.(7) In this section “reviewer” means any one or more persons appointed to review a case under the supervision of the safeguarding partners for a local authority area.””
“Further provision about arrangements
After section 16F of the Children Act 2004 (inserted by section (Local child safeguarding practice reviews) of this Act) insert—“16G Further provision about arrangements(1) This section applies in relation to arrangements made under section 16E or 16F by the safeguarding partners for a local authority area in England.(2) The safeguarding partners must publish the arrangements.(3) The arrangements must include arrangements for scrutiny by an independent person of the effectiveness of the arrangements.(4) The safeguarding partners and relevant agencies for the local authority area must act in accordance with the arrangements.(5) Subsection (6) applies where a person is specified in regulations under section 16E(3) for the purposes of the definition of “relevant agency”.(6) The regulations may make provision for the enforcement against the person of the duty imposed by subsection (4), if the Secretary of State considers that there would otherwise be no appropriate means of enforcing that duty against the person.(7) At least once in every 12 month period, the safeguarding partners must prepare and publish a report on—(a) what the safeguarding partners and relevant agencies for the local authority area have done as a result of the arrangements, and(b) how effective the arrangements have been in practice.””
“Information
After section 16G of the Children Act 2004 (inserted by section (Further provision about arrangements) of this Act) insert—“16H Information(1) Any of the safeguarding partners for a local authority area in England may, for the purpose of enabling or assisting the performance of functions conferred by section 16E or 16F, request a person or body to provide information specified in the request to—(a) the safeguarding partner or any other safeguarding partner for the area,(b) any of the relevant agencies for the area,(c) a reviewer, or(d) another person or body specified in the request.(2) The person or body to whom a request under this section is made must comply with the request.(3) The safeguarding partner that made the request may enforce the duty under subsection (2) against the person or body by making an application to the High Court or the county court for an injunction.(4) The information may be used by the person or body to whom it is provided only for the purpose mentioned in subsection (1).””
“Funding
After section 16H of the Children Act 2004 (inserted by section (Information) of this Act) insert—“16I Funding(1) The safeguarding partners for a local authority area in England may make payments towards expenditure incurred in connection with arrangements under section 16E or 16F— (a) by making payments directly, or(b) by contributing to a fund out of which the payments may be made.(2) The payments that may be made include payments of remuneration, allowances or expenses to a reviewer or an independent person.(3) The safeguarding partners for a local authority area in England may provide staff, goods, services, accommodation or other resources to any person for purposes connected with arrangements under section 16E or 16F.(4) Relevant agencies for a local authority area in England may make payments towards expenditure incurred in connection with arrangements under section 16E—(a) by making payments directly, or(b) by contributing to a fund out of which the payments may be made.(5) In this section an “independent person” means an independent person mentioned in section 16G(3).””
“Combining safeguarding partner areas and delegating functions
After section 16I of the Children Act 2004 (inserted by section (Funding) of this Act) insert—“16J Combining safeguarding partner areas and delegating functions(1) The safeguarding partners for two or more local authority areas in England may agree that their areas are to be treated as a single area for the purposes of sections 16E to 16I and subsections (3) to (5) of this section.(2) References in sections 16E to 16I and in subsections (3) to (5) of this section to a local authority area are to be read in accordance with any agreement under subsection (1).(3) Where a local authority is a safeguarding partner for the same local authority area as another local authority (as a result of an agreement under subsection (1)), the authorities may arrange for one of them to carry out functions under sections 16E to 16I on behalf of the other.(4) Where a clinical commissioning group is a safeguarding partner for the same local authority area as another clinical commissioning group, the groups may arrange for one of them to carry out functions under sections 16E to 16I on behalf of the other.(5) Where a chief officer of police is a safeguarding partner for the same area as another chief officer of police, the officers may arrange for one of them to carry out functions under sections 16E to 16I on behalf of the other.””
“Guidance by Secretary of State
After section 16J of the Children Act 2004 (inserted by section (Combining safeguarding partner areas and delegating functions) of this Act) insert—“16K Guidance by Secretary of State(1) The safeguarding partners and relevant agencies for a local authority area in England must have regard to any guidance given by the Secretary of State in connection with functions conferred on them by sections 16E to 16J.(2) Guidance given by the Secretary of State in connection with functions conferred by section 16F may include guidance about—(a) circumstances in which it may be appropriate for a serious child safeguarding case to be reviewed; (b) matters to be taken into account in deciding whether a review is making satisfactory progress or whether a report is of satisfactory quality.””
“Interpretation
After section 16K of the Children Act 2004 (inserted by section (Guidance by Secretary of State) of this Act) insert—“16L Interpretation of sections 16E to 16KIn sections 16E to 16K—“reviewer” has the meaning given by section 16F(7);“safeguarding partner”, in relation to a local authority area, has the meaning given by section 16E(3);“serious child safeguarding cases” has the meaning given by section 16B(9);“relevant agency”, in relation to a local authority area, has the meaning given by section 16E(3).””
“Child death reviews
After section 16L of the Children Act 2004 (inserted by section (Interpretation) of this Act) insert—“Child death review partners for local authority areas16M Child death reviews(1) The child death review partners for a local authority area in England must make arrangements—(a) for the review of each death of a child normally resident in the area;(b) for the analysis of information about such deaths generally.(2) The purposes of a review or analysis under subsection (1) are—(a) to identify any matters relating to the death, or the deaths generally, that are relevant to the welfare of children in the area or to public health and safety, and(b) to consider whether it would be appropriate for anyone to take action in relation to any matters identified.(3) Where the child death review partners consider that it would be appropriate for a person to take action as mentioned in subsection (2)(b), they must inform that person.(4) The child death review partners for a local authority area in England must, at such intervals as they consider appropriate, prepare and publish a report on—(a) what they have done as a result of the arrangements under this section, and(b) how effective the arrangements have been in practice.””
Baroness Evans of Bowes Park (Con)
My Lords, I shall speak to Amendments 121 to 125, regarding child death reviews in the multiagency local safeguarding arrangements. These proposed new clauses require the child death review partners—the local authority and clinical commissioning groups in a local authority area—to carry out a review of each death of a child normally resident in the area. They will be required to analyse the information obtained from child death reviews to identify issues that are relevant to the welfare of children in the area or to public health and safety and, in doing so, to consider whether it would be appropriate for anyone to take action in relation to any matters identified.
Amendment 122 will enable the child death review partners to request information and enforce compliance from any person or body in pursuance of their functions. Amendment 123 will allow child death review partners to agree to make payments to support the joint working arrangements which they are establishing for the reviews. Amendment 124 will allow the child death review partner areas to be made up of more than one local authority area, where there is more than one local authority or clinical commissioning group. This proposed new clause will allow the relevant child death review partner to delegate the review functions to one local authority or one clinical commissioning group. This is a practical provision, which enables the child death review partners to utilise more streamlined arrangements in a manner which they consider would work best for their area. These proposed new clauses do not change the individual existing responsibilities of each partner to exercise their functions with regard to child death reviews.
Amendment 125 will require child death review partners to have regard to any statutory guidance issued by the Secretary of State in regard to their functions. I believe that the partners will find guidance of this sort helpful in aiding their decision-making.
The death of any child is a tragedy, whether it is as a result of a health condition, an accident or abuse and neglect. Parents and the professionals who support them through this extremely difficult time will want full details of what happened in their case and to know whether anything could have been done to prevent this death happening. England was the first country in the world to put in place arrangements that provide comprehensive understanding of the causes of child deaths, and we need to build on the knowledge that we have gained so far. Collating and analysing information locally and sharing between areas are vital steps to help us to understand why children die.
In May this year the Government published the Wood review into the role and functions of local safeguarding children boards and child death overview panels. The review found that over 80% of child deaths have medical or public health causations, but the gathering of data on child deaths and the analysis of them is incomplete and inconsistent. As a result there is a gap in our knowledge, and professions are not sufficiently extracting learning from the data that are available in order to reduce the number of child deaths each year.
These new clauses bring the two key child death review partners together and place upon them equal responsibility to work together. They will enable health partners to continue to support the analysis of information on health-related child deaths at local and national level. Hospitals of course routinely analyse the data on child deaths. Local authorities need to be partners to ensure that factors relating to public health and safeguarding are similarly identified. This will also allow local authorities to promote learning and dissemination within their local area. For these reasons, the Government believe it is imperative that child death reviews remain on a statutory footing to secure the best outcomes for all children. I beg to move.
Baroness Hughes of Stretford (Lab)
My Lords, I have a question about these clauses, which are generally welcome. The more information we have about child death comprehensively, the easier it will be to take any necessary action. As I read the clauses, however, although I may have missed something, I cannot see what the review partners will be required to publish. Subsection (4) in new Clause 16M of the Children Act 2004 in Amendment 121 says they must,
“prepare and publish a report on … what”,
the partners,
“have done as a result of the arrangements … and how effective the arrangements”—
which I take to be partnership—“have been”. However, I can see nothing in here about the kind of analysis that the Minister was just referring to—the kinds of deaths that have occurred, for what purposes, the demographic and other characteristics of the children and so on. Could she enlighten us about what will be required in terms of general access to the information that has been collected here?
Lord Hunt of Kings Heath
My Lords, I would like to add another point. Here we are talking about child death review partners, and in the previous debate we were talking about safeguarding partners. I wonder if this is a concept that might be used with regard to the earlier part of the Bill relating to corporate parenting. The Minister will know that we had amendments to Clauses 1 and 2 around corporate parenting, the argument being that in order to discharge corporate parenting roles properly the local authority needs the support of core partners in the local area, including the health service and other agencies. I think we have all agreed that nothing should be done to dissipate the role of the corporate parent by, if you like, detracting from the local authority’s responsibility. However, I wonder if the concept of safeguarding partners and death review partners is an approach that we might consider. I realise that this is not the point to discuss corporate parenting, but it is an interesting concept that we might think about when we return to the subject.
Baroness Evans of Bowes Park
I thank noble Lords for their interventions. Perhaps I can take away the comments from the noble Lord, Lord Hunt. In answer to the noble Baroness, Lady Hughes, the child death review partners will be required to publish information on what more local authorities and CCGs can do to prevent deaths, including analysis and data. I am happy to come back to her with some further information following this discussion.
“Information
After section 16M of the Children Act 2004 (inserted by section (Child death reviews) of this Act) insert—“16N Information (1) Any of the child death review partners for a local authority area in England may, for the purpose of enabling or assisting the performance of functions conferred by section 16M, request a person or body to provide information specified in the request to—(a) the child death review partner or any other child death review partner for the area, or(b) another person or body.(2) The person or body to whom a request under this section is made must comply with the request.(3) The child death review partner that made the request may enforce the duty under subsection (2) against the person or body by making an application to the High Court or the county court for an injunction.(4) The information may be used by the person or body to whom it is provided only for the purpose mentioned in subsection (1).””
“Funding
After section 16N of the Children Act 2004 (inserted by section (Information) of this Act) insert—“16O Funding(1) The child death review partners for a local authority area in England may make payments towards expenditure incurred in connection with arrangements under section 16M—(a) by making payments directly, or(b) by contributing to a fund out of which payments may be made.(2) The child death review partners for a local authority area in England may provide staff, goods, services, accommodation or other resources to any person for purposes connected with arrangements under section 16M.””
“Combining child death review partner areas and delegating functions
After section 16O of the Children Act 2004 (inserted by section (Funding) of this Act) insert—“16P Combining child death review partner areas and delegating functions(1) The child death review partners for two or more local authority areas in England may agree that their areas are to be treated as a single area for the purposes of sections 16M to 16O and subsections (3) and (4) of this section.(2) References in sections 16M to 16O and in subsections (3) and (4) of this section to a local authority area are to be read in accordance with any agreement under subsection (1).(3) Where a local authority is a child death review partner for the same local authority area as another local authority (as a result of an agreement under subsection (1)), the authorities may arrange for one of them to carry out functions under sections 16M to 16O on behalf of the other.(4) Where a clinical commissioning group is a child death review partner for the same local authority area as another clinical commissioning group, the groups may arrange for one of them to carry out functions under sections 16M to 16O on behalf of the other.””
“Guidance and interpretation
After section 16P of the Children Act 2004 (inserted by section (Combining child death review partner areas and delegating functions) of this Act) insert— “16Q Guidance and interpretation(1) The child death review partners for a local authority area in England must have regard to any guidance given by the Secretary of State in connection with functions conferred on them by sections 16M to 16P.(2) In this section and sections 16M to 16P “child death review partners”, in relation to a local authority area in England, means—(a) the local authority;(b) any clinical commissioning group for an area any part of which falls within the local authority area.””
“Abolition of Local Safeguarding Children Boards
(1) Omit sections 13 to 16 of the Children Act 2004 (Local Safeguarding Children Boards).(2) In Schedule 1 to the Local Authority Social Services Act 1970 (social services functions of local authorities), in the entry relating to the Children Act 2004—(a) for “13 to 16” substitute “16A to 16Q”;(b) omit “targets for”;(c) omit “, and to Local Safeguarding Children Boards”.”
Lord Nash
This new clause is purely technical, but fulfils some important functions. Subsection (1) means that the existing provision for LSCBs, as set out in Sections 13 to 16 of the Children Act 2004, will be repealed. Local authorities will no longer be required to establish LSCBs. Instead, they will work with chief constables and clinical commissioning groups to set out Working Together arrangements, as specified in amendments to the Bill that we have previously discussed.
Subsection (2) amends the Local Authority Social Services Act 1970 to redefine social services functions by removing the reference to LSCBs and including provisions in relation to joint working arrangements in child death reviews that are the subject of amendments to the Bill. Where the term “social services functions” is used in legislation in respect of local authorities, the arrangements which these amendments provide for will be included. This is consistent with existing provisions for local authority functions relating to LSCBs.
An example of the importance of this provision is the Secretary of State’s intervention powers where local authorities are failing properly to fulfil any of their social services functions. The amendment means that should local authorities fail to fulfil their functions as set out in Sections 16A to 16Q of the revised Children Act 2004, the Secretary of State will be able to issue a suitable statutory direction. I should stress that this provision relates only to local authority functions. It does not cover any failures by clinical commissioning groups or chief constables in these arrangements. Existing provisions for intervention—sitting elsewhere—already cover other such failures. I beg to move.
Lord Watson of Invergowrie
My Lords, the Minister said that this is a technical amendment. Yes, it is, but the introduction of the Child Safeguarding Practice Review Panel will see the disappearance of local accountability for the most serious child abuse. The current process has an independent chair appointed by a national panel of experts, who are themselves independent. That means that local knowledge is retained, because representations can be made by those who are involved with the child and indeed the family, and, importantly, those who have an understanding of local characteristics. If the local safeguarding children boards are scrapped, how can the Minister reassure us that the local input will not be lost?
Baroness Bakewell of Hardington Mandeville
I will also speak to Amendment 126. I believe the relationship between what is currently the local safeguarding board and the national one is very clearly understood, with clear roles and responsibilities for each. My county council’s view, from experience, is that safeguarding absolutely must be owned by the local agencies that are responsible on the ground for improving safeguarding. The national safeguarding panel should therefore have a role in understanding local issues. I am concerned that, if the intention is to centralise at the national level, the national panel might not have the capacity or the local knowledge and experience to review and intervene in a timely way. I agree entirely with the comments made by the noble Lord, Lord Watson.
Lord Nash
On the points that have just been made, I thought we had discussed them at considerable length two groups ago. In answer to the noble Baroness, Lady Pinnock, I said that the panel is perfectly free to have elected representatives on it, as distinct from the current situation with LSCBs. They would not have to be co-opted, but can be full members of the panel. We have also made it clear, as we have discussed in some detail, that the panel can involve relevant agencies as it sees fit. As the whole point is to improve the analysis of what happens at local level, I feel that we have covered this issue. If the noble Lord or the noble Baroness thinks that we have not done so, I am happy to write to them with more details.
Lord Wills
“Whistleblowing arrangement in relation to looked after children and children at risk
The Secretary of State shall issue a code of practice on whistleblowing arrangements which can be taken into account by courts and tribunals when the issue of whistleblowing arises in public bodies providing social services and children’s services, and local authorities, in relation to looked after children and children at risk.”
Lord Wills
My Lords, as I said at Second Reading, the Bill is missing a crucial opportunity to introduce protections for the young people whom it is designed to support. These amendments would provide that opportunity. The importance of whistleblowing in exposing malpractice and wrongdoing and in improving the delivery of public services has been recognised by successive Governments for the past 20 years or so. The previous Labour Government brought in the Public Interest Disclosure Act and this Government have done more, insisting that they want to protect whistleblowers further. The current Prime Minister, for example, said:
“We will always back whistleblowers when they challenge poor standards, particularly in large organisations”.—[Official Report, Commons, 26/2/14; col. 257.]
When he announced new plans for the takeover of poorly performing children’s services last year, he highlighted that one of the “sharper triggers” for this,
“could include complaints from whistle-blowers”.
But whistleblowers in local authorities still lack some crucial protections that will encourage them to make such disclosures in the public interest. These gaps in protection not only discourage individual cases of whistleblowing and damage individual whistleblowers, they inhibit the creation of an effective culture in organisations that encourages transparency. Over and over again we have seen the consequences—repeated failures in the National Health Service, police wrongdoing after the Hillsborough disaster, and the scandal of MPs’ expenses when the fees office was well aware of the scams that went on but never blew the whistle.
Large organisations that serve the public in both the public and private sectors are powerful institutions, often driven by a potent internal culture. Every case of whistleblowing challenges the powerful vested interests which so often run such organisations. As I have often said in debates on these issues, too often after a scandal has been revealed, abuses have been tackled and the guilty punished, and after all the fine words about whistleblowing have been spoken, it is all too easy for those dominant interests to revert to carrying on much as they did before. The powerful never like being challenged.
These amendments would provide extra protection for those working in public bodies providing social services or children’s services, and local authorities, in relation to looked-after children, children at risk and social workers in two ways. First, they would require the Secretary of State to issue a code of practice on whistleblowing arrangements that can be taken into account by courts and tribunals when the issue of whistleblowing arises. Secondly, they would provide protection against employment blacklisting of whistleblowers.
Amendments 127 and 137 would embed a code of practice into statute so that it would be taken into account by courts and tribunals. This was a key recommendation of the whistleblowing commission set up by the whistleblowing charity Public Concern at Work, chaired by the former Appeal Court judge Sir Anthony Hooper and whose members included the noble Lord, Lord Burns. The commission drafted a 15-point code of practice providing practical guidance to employers, workers and their representatives, and set out guidance for raising, handling, training and reviewing whistleblowing in the workplace. This could act as a model for these amendments. A statutory code of conduct sends out to all organisations a powerful signal about the importance that Parliament attaches to providing adequate protections for whistleblowers to help drive necessary cultural change within organisations to encourage responsible whistleblowing.
Amendments 128 and 138 would provide improved protection for whistleblowers who are job applicants. This is a critical gap in protection for whistleblowers. Unlike in other areas of discrimination law, job applicants are not considered workers under the Public Interest Disclosure Act, which provides protection where a worker secures a position and is then victimised, forced out or dismissed if the employer becomes aware of an instance of whistleblowing in a previous job role. If an individual is labelled a whistleblower, it can be very difficult for them to get work because they can find themselves blacklisted—not through a formal, centralised database but informally. The amendment would plug the loophole identified in the case of BP plc v Elstone where the Court of Appeal stated that the situation was created because the drafting of the Public Interest Disclosure Act had not considered the situation of a job applicant being victimised by raising concerns in a previous job.
Following the Francis report into the Mid Staffordshire NHS Trust, the Government finally recognised this anomaly and introduced new protections for whistleblowing job applicants—but they covered only the NHS. There is no logical reason why such protections should be so restricted. Actionable offences of sex and race discrimination are not restricted to the NHS, so why should discrimination against whistleblowers be?
The amendment addresses this anomaly for those working in public bodies, providing social services and children’s services, and local authorities, in relation to look-after children, children at risk and social workers. If the Bill is to realise its welcome objectives, it needs to encourage a culture of transparency among all those charged with delivering them. The amendments would help to do so, and I hope that the Minister will feel able to accept them.
The Earl of Listowel (CB)
My Lords, this of course brings back memories of the home for adults with learning disabilities that was so well documented on the “Panorama” programme a while ago. While I support the principles that the noble Lord has just laid out, I would point out that many people working in this area nowadays will be working for private businesses. Most children’s homes are in private hands and many foster care agencies are now private, so in that sector there may be well laid-out regulations regarding whistleblowers. Perhaps the Minister could write to us, or have further conversations, to reassure me, at least, that there are whistleblowing protections for those working in the private sector with vulnerable children.
Baroness Wheeler (Lab)
My Lords, we are very pleased to support this group of amendments, to which my noble friend Lord Watson has added his name. My noble friend Lord Wills has made a strong case for seizing the opportunity under the Bill of extending the whistleblowing arrangements and protections currently applicable in the NHS to those working in public bodies providing social services and children’s services, and local authorities, in respect of looked-after children and children at risk of harm, and well as to social workers. The Francis report into the Mid Staffordshire NHS Trust was the trigger for enhancing important whistleblowing protections in the NHS, and it is right that we now have similar effective arrangements covering the provision of vital social services.
Under Amendments 127 and 137, which would bring in new clauses after Clauses 14 and 26, the Secretary of State would be required to issue a code of practice on whistleblowing arrangements that could be taken into account by courts and tribunals when whistleblowing arises in public bodies providing social services and employing registered social workers. My noble friend rightly refers to the whistleblowing commission’s code of practice for employers, workers and trade unions, published by the charity Public Concern at Work, which could provide the model or framework for the proposed code. It would also underline that protection for whistleblowers is a statutory requirement with parliamentary enforcement. The commission’s recommendation was that the code should be “rooted in statute”, and we support that.
Current protections offered to staff who challenge poor standards of care, both those covering widespread systemic failure and those involving day-to-day concerns about unsafe or poor practice, are certainly inadequate for those making disclosures in the public interest. The joint Community Care/UNISON workplace zone on whistleblowing underlines that many social workers and care professionals are too afraid to blow the whistle on poor practice. Their regular surveys of social workers give detailed accounts of staff trying to report their concerns, only to come up against bullying colleagues, managers with what they refer to as “selective hearing” and processes that protect the organisation over its staff—the pervasive and powerful organisational culture that my noble friend has identified as operating in workplaces, particularly in large-scale institutions where you have to be very brave and persistent to raise concerns.
The CQC’s quick guide to whistleblowing and the Ofsted reports on whistleblowing about safeguarding in local authority children’s services would give little comfort and reassurances to potential whistleblowers regarding their future security and career. Ofsted has no regulatory powers to investigate whistleblowing complaints but can use them as a trigger to bring forward inspections of council services. The CQC guide outlines clearly the procedures to take but its preface stresses to the staff member raising the issue:
“We don’t have any powers to protect you from action taken against you by your employer”.
The proposed code of practice on whistleblowing arrangements, with the enforcement of the Secretary of State providing guidance that can be taken into account by courts and tribunals, would help to provide reassurance to potential whistleblowers and provide practical guidance to both employers and staff.
Amendments 128 and 138 specifically address the discrimination that whistleblowers who have made a protected disclosure under the Employment Rights Act 1996 in their previous employment can face when applying for a job. The current exclusion of job applicants not considered workers under the Public Interest Disclosure Act can result in whistleblowers being blacklisted and finding it virtually impossible ever to get work again. As noble Lords have stressed, this situation should not be allowed to continue.
One of the key provisions of whistleblowing policies is the requirement for employers to provide assurance to the worker that he or she will not suffer detriment for having raised a concern—in other words, to make every effort to provide protection to whistleblowers who feel they may be vulnerable. These amendments would help to address the current gaps in providing the protection that whistleblowers urgently need and deserve.
Baroness Pinnock
My Lords, I shall not repeat what many other noble Lords have said about whistleblowing, but confirm that we on this side totally support what has been said and the amendments that have been tabled.
Baroness Evans of Bowes Park
I am grateful to the noble Lord, Lord Wills, for these amendments and to noble Lords for their contributions. I assure noble Lords that whistleblowing is an important issue and one that we are taking very seriously. Every child deserves to be safe, and those organisations entrusted to protect our children must work as effectively as possible to achieve that.
Registered social workers work with some of the most vulnerable people in our society, supporting children, adults and their families, often at the most difficult times in their lives. It is important that registered social workers and other employees work in a culture of openness, where they feel confident to speak out when they are concerned about the practices of their employing organisation. They should be able to raise concerns free from fear and victimisation, as the noble Baroness said, with processes and procedures that encourage, support and protect employees when they do so. Disclosures can help to improve the services provided to children, adults and families and safeguard the vulnerable from abuse and neglect.
With regard to Amendments 127 and 137, I agree with the principle that there are clear expectations on local authorities and other public bodies on whistleblowing issues related to child protection and social work. We have a framework of employment protections for whistleblowers and I agree that it is important that employers should act in accordance with that. The coalition Government reviewed the statutory framework in relation to whistleblowing in 2014, following the report of the whistleblowing commission, as the noble Lord said, and the Government’s call for evidence on the matter. The Government concluded that the right balance was to be struck by guidance and a non-statutory code of practice, rather than a statutory code of practice recommended by the commission. The Government published that guidance and statutory code in March 2015.
I am afraid to say to the noble Lord that we are not persuaded of the need to reopen this question in the context of the Bill. If the noble Lord has concerns about the practices specifically of local authorities and public bodies that provide children’s services and employ social workers, we would be happy to consider them. There may be more that we can do, for example, to draw our guidance to the attention of those bodies and ensure their compliance with it.
In relation to the question asked by the noble Earl, Lord Listowel, we confirm that whistleblowing protections in the Employment Rights Act apply to all employers, both private and public.
On Amendments 128 and 138, I share the noble Lord’s concern that those who make a protected disclosure under the Employment Rights Act should not suffer adverse treatment in their current employment or their future career. I understand that some workers have been concerned that whistleblowing may lead to them being placed on some form of informal blacklist that will prevent them getting other employment in the sector. We would be extremely interested in any evidence of that happening and would be very concerned if it was found to be the case.
As the noble Lord and the noble Baroness, Lady Wheeler, mentioned, provision has already been made to protect job seekers in the National Health Service from such discrimination, following the report into whistleblowing in the NHS undertaken by Sir Robert Francis QC, Freedom to Speak Up.
I believe that the Department of Health will shortly be consulting on the necessary secondary legislation. We will be interested to see the issues raised during that consultation. Together with any examples of whistleblowers who have suffered in this way in children’s services, this will inform our consideration of any case for future change. I have asked Department for Education officials to work with colleagues from the Department for Business, Innovation and Skills and the Department of Health, and to contact the noble Lord to discuss further the issues arising from these four amendments.
Although I understand that some of my response will not be welcomed by the noble Lord, Lord Wills, I hope he sees that we are taking action and will take further action, and therefore feels able to withdraw his amendment.
Lord Wills
My Lords, I am very grateful to everyone who has taken part in this short debate and for the support I have had from all sides of the Committee. I am also very grateful to the noble Baroness. As she suspected, I am not particularly happy with the response; nevertheless, there were a few little glimmers of light, for which I am truly grateful.
I am baffled by the Government’s continued resistance to these points. I understand that it is not just a matter for the Department for Education; I have raised this issue on other occasions in relation to other departments. For some reason, the Government are digging in on this matter and I really do not understand why. I do not understand their resistance to a statutory code of conduct. As I said, it is important that it is placed in the Bill because that would send a very powerful signal to all these organisations that Parliament takes this issue very seriously. Guidance is all very well but, as we know, all too often in many spheres of public life it goes by the wayside in the face of all the other pressures on public organisations. A statutory code of conduct is qualitatively different and, frankly, I do not understand why the Government continue to resist it.
Nor do I understand why they are taking so long to rectify the anomaly in protecting job applicants. This was raised in previous debates and the Government dug in very resolutely, in the way that the noble Baroness has done, until the Francis report arrived. When that report said that many of the tragedies that took place in Mid Staffordshire NHS Trust could have been prevented if there had been a proper culture of whistleblowing, the Government immediately switched round and provided protection for NHS workers. I know that the noble Baroness is doing her best with the briefing that she has been given; nevertheless, she has still not produced any good reason why workers in the NHS should be protected, yet workers in equally sensitive and equally important areas of public service—all the areas covered by the Bill—are not. The signal that the Government are sending out, and I cannot understand why they want to go on doing so, is that somehow these matters are less important than the matters covered by the NHS. Clearly, that is not the case.
When the noble Baroness calls for evidence, almost by definition it will come only after a tragedy such as happened in Mid Staffordshire has occurred. I ask the question that I have asked other Ministers: do they really want to be on the record as denying an opportunity to put right this anomaly, only for some distinguished person at a public inquiry following a terrible tragedy—sadly, there almost certainly will be such a tragedy at some point in the future—to look at it all and say, “If only there had been a culture to encourage whistleblowing and transparency, we might have prevented some of these terrible circumstances”? Why do Ministers still resolutely turn their face against this?
The glimmers of light that the noble Baroness has produced today are a tiny, tiny step forward from the previous response that I have had from Ministers, so I am grateful for her commitment to continue to look at this issue. However, I urge her and all Ministers to take this more seriously and not to wait for another disaster and then to be forced into taking action, just as the Francis report forced the Government to take action after the Mid Staffordshire incident. Having said all that, I may try again in the future but, in the meantime, I beg leave to withdraw the amendment.
Lord Watson of Invergowrie
My Lords, I shall speak to Amendments 129 and 132 in my name and that of my noble friend Lord Hunt. I am also a signatory to Amendment 131 in the name of my noble friend Lord Wills, but I shall have less to say on that.
As regards the third and fourth subsections in Amendment 131, the huge controversy surrounding Clause 15 and the Government’s intention to enable local authorities to be exempted from providing local child protection and other children’s services requires a firmer base than a local authority simply approaching the Secretary of State to seek permission to do so. Some form of independent oversight is necessary to assuage the widespread concern among charities and other organisations prominent in the sector, not to mention local authorities themselves, as to the possible effects of Clause 15. It is essential that, as advocated in Amendment 132, a local authority is not exempt from corporate parenting principles—a subject on which we talked at length in previous sittings—just because it has been exempted from some of its statutory responsibilities. An assurance from the Minister on this point, even if he does not accept the amendment, would be valuable.
The Government have not made a case as to why Clause 15 is necessary. The Minister needs to explain to noble Lords precisely what problem this proposal is designed to address. As to the underlying premises of Clause 15, frankly, who knows? Suggestions have been put forward by several people and organisations. They vary from requirements in primary and secondary legislation blocking the delivery of effective children’s services to the suggestion that it might make it more attractive for private companies to get involved in the delivery of social work services.
No evidence has been published by the Government to support the notion that legislation is an impediment. Indeed, their Putting Children First strategy published last week, refers to creating,
“a controlled environment in which we could enable local authorities to test deregulatory approaches that are not currently possible, before taking a decision to make substantial changes to existing legislation that would apply across the board.”.
However, the document does not set out the deregulatory approaches, which cannot be tested presently, and a box insert in the report quotes Professor Eileen Munro referring to “unnecessary legal rules”, although, again, they are not specified.
Is it the case that all legislative duties in respect of children’s social care are potentially problematic? I think not, because the Government’s Red Tape Challenge concluded in 2014 that only five regulations needed to be scrapped, three of which were already redundant, and 14 separate regulations were actually improved as a consequence of that consultation. Despite that, the breadth of legislation that can be exempted by Clause 15 is extraordinarily wide. I need do no more than refer noble Lords to Clause 19.
Are the problems in children’s social care so serious that the Secretary of State and her officials require a fast-track process to repeal or change legislation? That is what appears to be the case from the way in which the Bill is framed, because Clause 15 marks a major break with the ordinary legislative process where Ministers publish Green Papers, identify policy problems and potential solutions, expert organisations and individuals respond, White Papers are issued and legislation is then introduced to Parliament. In the Bill, only Ofsted’s chief inspector and the Children’s Commissioner need to be consulted. When legislative changes are proposed by the Minister or by an individual sent into a local authority as part of a ministerial intervention, there is no duty to consult the local authority.
That is relevant because the Government’s ambition was stated in Putting Children First as being that,
“over a third of … local authorities will either be delivering their children’s services through a new model or be actively working towards a different model”,
by 2020. We see the shape that the Government want to achieve in four years’ time, but the route to get there is what concerns many people, not least noble Lords on this side of the Committee.
At Second Reading, the Minister referred to the need for innovation. As I said, we on these Benches are certainly not opposed to that concept. We support innovation if it improves outcomes for children and standards in local authorities, but innovation can and does take place effectively within local authorities. Indeed, several have already developed and successfully piloted innovative approaches within children’s services while meeting their statutory responsibilities.
The Minister will no doubt be aware of this but, while Leeds is probably the most frequently mentioned, I can also cite Cambridgeshire, Durham, Hampshire, Lincolnshire and the London boroughs of Hammersmith and Fulham, Islington, Kensington and Chelsea, Kingston, Richmond, and Westminster. Each of those local authorities already has the necessary freedom to innovate to improve front-line children’s social services by developing new systems of delivering social care and piloting new ways of working with families. They have all been able to do so without the need for new legislation, so again I invite the Minister to demonstrate why, when all the innovation that I have just listed is already possible, the provision is necessary. Indeed, Ofsted’s latest annual report on social care includes several positive case studies and comments. In the best local authorities, leaders have developed ambitious and innovative approaches to practice that are firmly grounded in sound research, confirming again that innovation is possible. I am sure that the Minister will say, “Yes, well, that’s just some local authorities. Some are performing poorly or could even be described as failing”. That could well be the case, but it does not mean that we need a sledgehammer to crack a nut when many local authorities are able to do what the authorities I have mentioned are already doing. There are real concerns about where this could lead.
I shall go into this in a little more detail. At Second Reading the Minister outlined three areas where he foresaw different ways of working. These were: relaxing the assessment process for children’s placements with family and friends; the removal of independent review officers from low-risk children in care; and disbanding adoption and fostering panels. The third of these is by far the most controversial, with noble Lords receiving many emails outlining why it is a foolhardy and potentially even dangerous step. Indeed, statutory guidance on adoption states that adoption and fostering panels,
“play an important quality assurance role, providing objectivity and having the ability to challenge practice which is felt not to be in the interests of children”.
In 2012 the Government consulted on reducing the membership of adoption and fostering panels, claiming that too many members cause delay. However, the proposal was overwhelmingly rejected and in May 2013 the Government concluded:
“We will not introduce a maximum number of adoption or fostering panel members or restrict the number of non-panel members attending an adoption or fostering panel meeting”.
So why the change now? The Minister’s announcement of the removal of the panels altogether goes well beyond even the September 2012 proposals, which, as I said, were strongly rejected. The majority of respondents to that consultation were involved directly in adoption and fostering service, and knew from personal experience the important role that the adoption and fostering panels play. Indeed CoramBAAF, an organisation at the forefront of adoption and fostering, and indeed in training people in those sectors, has said that this is the worst possible move that it could have imagined the Government to have made.
I will not comment at this stage on the other potential areas for exemption, but it is strange that others seem now to be emerging. I quote removing looked-after status from children remanded in custody; removing the duty to review a child’s care when he or she is in a stable placement; and the relaxation of children’s homes’ planning rules. When I say that they have emerged, that is not to say that they were announced by the Government or by anyone on their behalf; they emerged at the recent conference of the Association of Directors of Children’s Services. Those are the sorts of areas where these senior people in the field anticipate that some of those services may be exempted. That is a serious matter. If the Minister is able to respond to that, it would be helpful, although I understand that he has not had much notice.
As was discussed in Committee last week when considering Clause 9, removing the burden of requirements to meet statutory obligations enshrined in children’s social care legislation enables local authorities to incentivise private and not-for-profit providers to bid for parts of the children’s social care pathways. The danger outlined by a number of people, and one that we echo, is that this further threatens the extent to which children’s social care can be fragmented into multiple pathways and perhaps diverse provision, threatening the provision of those services that really are best delivered in a joined-up manner to make them as effective as they can be.
Both at Second Reading and last week in Committee I asked the Minister whether he had made an assessment of the risk to children in allowing local authorities exemptions from some key duties in keeping children safe. I did not get a response. I hope it will be third time lucky and that he will be able to give me an answer to that important question, because I am not the only one who is asking it. It has been widely asked by those who have contacted noble Lords.
As it stands, the Bill’s proposals in Clause 15 are too wide-ranging, without adequate safeguards to protect children and young people if plans to outsource services go wrong. For that reason, it is our intention to return to this issue on Report when the House will have the opportunity to express its opinion if it wishes to do so. It is not appropriate for Clauses 15 and 18 to stand part of the Bill unless and until the Government can offer persuasive evidence of their necessity and significantly improve on their transparency and safeguards. I beg to move.
Lord Warner
I will speak to Amendment 130 in my name and that of the noble Baroness, Lady Walmsley. I will also speak to the proposed deletion of Clause 15 from the Bill. Rather unusually, I would prefer that Clause 15 were removed from the Bill altogether than that the Government accept the amendment in my name and that of the noble Baroness.
Given the widespread concern outside this House that the noble Lord, Lord Watson, has already mentioned, we need to understand much better than we do at the moment why the Government are so keen to have this sweeping power in Clause 15. I find the underlying premises of Clause 15 extremely strange—even more so than when I spoke about the clause at Second Reading. First, the clause seems to presuppose that in some way legislation is blocking the delivery of good quality children’s services. There was an opportunity to explain these alleged blockages in the Minister’s latest document, Putting Children First but, on a quick read, I cannot see that that opportunity was taken except for some rather generalised remarks about testing “deregulatory approaches” and a quote from Professor Eileen Munro about “unnecessary legal rules”. But my understanding is that in her review of child protection, Professor Munro was not arguing for changes in primary or even secondary legislation, but for amendments to statutory guidance. Will the Minister clarify what the primary and secondary legislation blockages are, preferably in writing to all members of the Committee before Report?
To compound the confusion, I understand that the Government have already used existing statutory power to amend statutory guidance following the Munro review by issuing directions to particular local authorities. Ofsted’s annual report shows local authorities adopting innovative practice without the need for changes in legislation. Moreover, as the noble Lord, Lord Watson, mentioned, the Government’s very own Red Tape Challenge, as it was called in 2014, seems to have revealed very little to remove for children’s services. Again, will the Minister clarify that, preferably in writing? So far, the Government have produced no evidence that primary or secondary legislation is impeding innovation in children’s services. They already have plenty of scope for amending statutory guidance or issuing directions to particular local authorities without the wide-ranging power to repeal or modify children’s social care requirements in Clause 15 that would last, I understand, for at least six years.
One is entitled to be a little suspicious about what the Government are really up to with Clause 15. Of course, I am the sort of chap who takes for granted that Ministers are well intentioned when they bring measures before your Lordships’ House, but could it be that what lies behind this provision is a short-cut way of outsourcing whole chunks of services? Ofsted seems to be claiming that up to 25% of children’s services are inadequate. Rather than working with some external turnaround capacity to improve matters, is there a new-found enthusiasm within DfE for trying to get quicker results by removing legislative impediments to outsourcing?
Personally, I have no particular objections to outsourcing if that can be shown to have a beneficial effect for children after trialling. I have been trying to probe what the DfE is up to with the transfer of children’s services to trusts. On the answers that I have received, this is clearly an expensive process, it can be very time-consuming, accountability can become extremely blurred and at present there is no body of evidence to support it as a general remedy for failure. Moreover, the DfE has still to publish the report that it commissioned in 2014 from LaingBuisson into developing capacity and diversity in the provision of children’s services. I know from my involvement in that work that it did not suggest that creating a market in children’s services would be easy.
I turn briefly to Amendment 130, which would require the Secretary of State to set up an independent review panel to consider whether any exemptions or modifications under Clause 15(2) are likely adversely to affect the legislative safeguards or rights of children approved by Parliament and to consider the published advice of such a panel before acting. I consider this the least that we should do if the Government persist in proceeding with Clause 15. To sum up, we need much more transparency and clarification from the Minister on why the Government need Clause 15 and why they cannot use their existing powers of direction and statutory guidance to secure their espoused innovation objectives.
Baroness Walmsley
My Lords, I support the noble Lord, Lord Warner, in arguing for this amendment. If these clauses eventually remain in the Bill, which is in considerable doubt, although I will leave it to my colleagues to argue that case, it is vital that children’s rights and entitlements are not diminished in the process. These clauses, to my mind, fundamentally undermine rights that have been enshrined in children’s social care legislation following intensive debate in Parliament. They are to be removed at our peril. However, given that some local authorities have seen an 82% increase in the number of children in need between 2010 and 2015, at the same time as local authority budgets have continued to decrease, there is a danger that these new powers might be seen as a way to save money. However, undermining children’s basic rights should not be the penalty for innovation. Many local authorities have vastly improved the service that they give to vulnerable children by trying new things without seeking any exemptions from the children’s rights.
The noble Lord, Lord Warner, mentioned Professor Eileen Munro. He is quite right that she never suggested that we needed to repeal primary or secondary legislation; she just asked for less onerous guidance. Innovation has been done effectively through waiving statutory guidance in some authorities. Importantly, outcomes have been monitored and reported on and it is from such reports that lessons are learned. That is the way forward.
I question the necessity for this part of the Bill. In particular, I want to ensure that the Secretary of State can be assured by independent experts that the benefits to children’s rights will be greater than the risks. The key word here is independent because, according to the Bill, the only people who have to be consulted are the Chief Inspector of Schools and the Children’s Commissioner. I point out that both of them will already have been appointed by the Secretary of State. Although I have every respect for the current incumbents of those offices, we need more independence than that. That is why I support this amendment. Innovation should be encouraged within a framework of fundamental rights and entitlements within the law.
The Earl of Listowel
My Lords, before speaking to my amendment in this group I make clear that I support those noble Lords who call for the clause to be removed from the Bill. This is not the time to erode the rights of vulnerable children. As the noble Baroness, Lady Walmsley, said, we are facing a period of austerity. The Chancellor of the Exchequer has just removed his target to pay down the deficit by 2020 but we should certainly not think that that is the end of austerity; we can expect it to extend for many years to come. Unfortunately, that means that local authorities will continue to have severe downward pressure on their budgets, so I share the noble Baroness’s concern that whatever the good intentions of this clause, it might result in cutbacks on protections for children in order to save money.
The purpose of my Amendment 131A is, where a local authority has been exempted, to enable a child, his advocate or a professional to ask for the exemption to be released for that child. For instance, if the responsibility for putting in place an independent reviewing officer was removed, a child could, if he decided to do so, call for an IRO to be instated. The Minister referred to the role of IROs at Second Reading.
I draw your Lordships’ attention to research by the National Children’s Bureau. It has found that the area in which the IRO service has been seen to make the biggest difference is in ensuring timely reviews of the care plan. Nationally, the survey found that that was where IROs were perceived to have made the greatest difference, with 91% of IRO managers, 82% of IROs and 72% of directors of children’s services strongly agreeing that, since 2011, IROs have contributed to the timeliness of reviews. Another area in which IROs are seen to have had an impact is in ensuring that the care planning process remains firmly focused on the child and that the child’s wishes and feelings are taken into account. Nationally, the survey found that 90% of IRO managers, 72% of IROs and 73% of directors of children’s services strongly agreed that, since 2011, IROs had ensured that children’s wishes and feelings were recorded and taken into account.
Amendment 131B would ensure that there is excellent parliamentary scrutiny should Clause 15 continue to be in the Bill. Major voices from the children’s sector have been clear that innovation is necessary to ensure, in the face of increasing risks and challenges, that the sector can learn and improve. Like many, I share the concern of all the major children’s charities that the right safeguards should be in place to ensure that innovation is overseen properly and delivers for children and families without disruption to their lives. Such scrutiny is essential and should not be overridden. Local authorities should not be exempted from laws that have been developed and scrutinised with care and attention by both Houses without a comparable amount of parliamentary oversight of the potential impact of any exemptions. That is what the amendment seeks to achieve.
The amendment would ensure that only laws subject to the negative resolution procedure in their formation could be overridden by the same process. Whether in the process of seeking to innovate to improve services for children or otherwise, it is not appropriate or democratic that regulations introduced through a debate and vote in Parliament should be exempted without such a process. Our job is to hold the Government to account, and we should not be prevented doing so. It is imperative that our powers to scrutinise the safeguards needed to protect children from the impact of any exemptions are not disrupted by the desire to innovate to improve outcomes for children.
Lord Ramsbotham
My Lords, I return briefly to Clause 15, which is a classic example of regulation too far. I agree with everything that has been said so far. It is inappropriate and ought to be struck out of the Bill. Only two things are needed. One is the minimum list of tasks that must be done with children. If anything, the Secretary of State should seek to improve the list and to improve delivery if there is any failure to deliver what must be done, rather than remove any task. Secondly, as has come up over and over again, we are looking for consistency in delivery and to avoid the postcode lottery in the treatment of children all over the country. If there is a minimum list and machinery for looking at that, we will find, as many noble Lords have said, that individual local authorities will encourage improvement in the way those minimum requirements are operated. The way to improve things is by changing single practice somewhere to common practice everywhere, not by regulation. Therefore, I hope very much that, if not before then certainly on Report, this clause will be struck out.
Baroness Bakewell of Hardington Mandeville
My Lords, I shall speak against Clause 15 and support the arguments of the noble Lords, Lord Watson, Lord Warner and Lord Ramsbotham. Clause 15 allows local authorities to be exempted from certain legal requirements and regulations and to test different ways of working. It is important, however, that they do not dilute accountabilities, fragment responsibilities and create a two-tier system of quality and standards. All vulnerable children deserve the same level of care.
Clause 15(3) says:
“The Secretary of State may make regulations under this section relating to a local authority in England only if asked to do so by that authority”.
My view is that it should not simply be at the whim of a local authority and that certain tests should need to be fulfilled to justify it, not least that the exemption should promote better outcomes and more efficient working. It should be clear that inadequate local authorities cannot be exempted from regulations that are crucial for upholding quality standards across the country. Clause 15(4) says:
“Regulations under this section may be made in relation to one or more local authorities in England”.
I seek assurance that the Secretary of State will not use the power under this clause to apply a request from one local authority seeking freedom under subsection (3) to apply it to more than one local authority under subsection (4).
In addition, I believe that statutory social work is best placed within local government, where there are established frameworks for oversight and monitoring. These clauses should not challenge the ultimate legal responsibility of local authorities to safeguard children. We need to avoid greater fragmentation of provision, any blurring and dilution of accountabilities, and any increased risk arising from more multiple hand-offs between disparate organisations. The experience of the NHS is salutary in this context: it is now imposing middle-tier planning arrangements to secure more effective joint working in a fragmented sector.
I am concerned that this clause could create an inconsistent national arena for the delivery of statutory social work duties, which could lead to confusion and a greater divide of practice. For children’s social work to run well, it has to uphold partnerships with a broad range of agencies: schools, police, health services—commissioners and providers—and the local voluntary sector. Local councils are best placed to perform that function.
I note that Scotland has required independent fostering arrangements to be not for profit; that approach could be explored in England. Recent research from Corporate Watch shows that in 2014-15, eight commercial fostering agencies made around £41 million profit between them from providing fostering placements to local authorities, at a time when local authorities have had to make significant budget reductions. Surely that profit could have been used to protect looked-after children.
Lord Wills
My Lords, I will not delay the Minister’s response very long. I want to say a few words in support of Amendment 131, to which I have added my name.
I recognise that there is widespread unease about Clause 15. All the noble Lords who have spoken so far have reflected that. The Minister will be aware that there is unease outside your Lordships’ House as well. I recognise that innovation can be crucial to the improvement of public services and I suspect, although I hope to be proved wrong, that the Government will not be unduly swayed by all the compelling arguments that we have heard against the clause. That is why Amendment 131 is important. Innovation, as other noble Lords have said, should not be at the expense of appropriate safeguards for those whom it is designed to help. Although I understand the Government’s intention—to promote new ways of working—as we have heard over and over again, as currently drafted the Bill does not offer adequate protections for those young people against failures in innovation. Amendment 131 aims to help to do so by placing a duty on the Secretary of State to,
“consult children in care, those representing children in care, and care leavers in their area before making a decision to grant an exemption or make modifications under subsection (2)”.
Innovation may be positive from the perspective of the local authority but it will not necessarily be positive from that of the young people affected by it. Children in care and care leavers have been let down by the system for so long that they have earned the right to have their views heard about changes to it. If any changes are to be successful, it is crucial that they are heard. These young people know better than anyone how the system works for them. That is one good reason why Article 12 of the UN Convention on the Rights of the Child stipulates that, when adults make decisions affecting children, children have the right for their opinions to be taken into account.
The amendment also provides for new, independent scrutiny arrangements and a duty on both the local authority and the Secretary of State to consult children in care and care leavers when a local authority applies for an exemption from the requirements of social care legislation. At Second Reading, the Minister was reassuring about scrutiny arrangements, but I ask him to consider carefully the merits of a new, independent body. Existing organisations all come with their existing viewpoints, cultures and histories—in other words, they come with baggage. The proposed change in Clause 15 is potentially so radical and could have such a dramatic effect on the lives of young people, who already face such huge challenges, that I believe it is important that any organisation scrutinising such arrangements should be dedicated to doing so. It should be able to adopt fresh perspectives and develop specific expertise, which a new scrutiny organisation will be able to do in a way that existing organisations may well not. From his response at Second Reading, I suspect that the Minister is not minded to do this but I hope that he is open to persuasion on that point.
Lord Mackay of Clashfern
My Lords, I want to ask a very specific question. Could an exemption of the kind envisaged in the amendment of the noble Earl, Lord Listowel, occur under Clause 15?
Baroness Pinnock
My Lords, I concur with all the concerns that have been expressed so far about Clause 15. It is not that any of us are against innovation per se, but we are concerned about the proposed non-limits to the innovation.
At the heart of this clause is a dichotomy. On the one hand, children’s social work is probably the most regulated of all public services and has the most legislation surrounding its practice. On the other hand, if we take the clause at face value, it appears to allow any innovation within those regulations to be set aside. I asked civil servants what the criteria are for innovative practice, what the boundaries for it are and whether anything is off the table. The answer was that there are to be no limits. I found that quite disturbing. It is not as though we are dealing with anything mechanical here; we are dealing with the most troubled and vulnerable children in our society, who deserve our protection. What we need to try to achieve is set out in the Putting Children First report, which offers a blend of innovation and protection that works.
I have not yet understood how, on the one hand, Leeds City Council, which has been referred to in earlier debate on the Bill, has been enabled to innovate without difficulty—I know that it has been allowed to set aside some regulations, without the need for this clause, and has been successful in doing so—yet on the other, Doncaster Council, which sadly have a long history of inadequate children’s services, has not achieved much improvement despite all the efforts that have been put into it. The answer is that it is not so much legislation and regulation that is the problem, but having the support of key professionals—making sure that we have highly trained, effective and good leaders in social care, who can make a difference. That is what the report, on which I guess that many of the clauses in the Bill are based, says. Can the Minister tell us: is anything off the table as regards innovation, or is protection of children coming first?
Lord Nash
My Lords, I will speak to Amendments 129, 130, 131, 131A, 131B and 132, in this group regarding the power to test new ways of working. I thank noble Lords for tabling these amendments to the clause, providing me with an opportunity to explain its purpose and operation in more detail. In short, this is purely to improve the provision of services to children.
Before I go into detail, I would like to return quickly to our discussion about profit of last week. I could not help reflecting that I might be the only noble Lord present who has spent most of his life, until recently, proudly in pursuit of profit. That fact may itself raise wider issues, but I say again that we have no intention of revisiting the settled position on profit-making in children’s social care or of using Clause 15 to circumvent that position. I gave that assurance at Second Reading and do so again now. The policy paper Putting Children First, published last week, makes the same commitment and the Minister for Children and Families reiterated the point in his speech to the Association of Directors of Children’s Services last week. I hope that that makes things absolutely clear.
At the heart of this power to test new ways of working is the intention to achieve better outcomes for children and young people. This unwavering focus is at the very core of the department’s agenda to drive innovation and improvement. More significantly, the push to remove procedural barriers to better ways of working is in direct response to what local authorities are telling us young people are saying to them. They want things done differently.
The Government’s £200 million children’s social care innovation programme has enabled local authorities to develop and test new ways of working, but in some aspects of provision this has reached the limits of what is possible under current children’s social care legislation. This power responds to the sector’s appetite to go further by allowing it greater flexibility to support young people in the most effective way. A number of noble Lords referred to examples of good innovation, some of which have been pointed out by Ofsted. They referred particularly to Leeds, one of our partner in practice local authorities, which has told us that it is proud of the innovation it has achieved so far within the current framework—but it is also keen to go further for children and families in its area. It cannot do that without this provision.
This power is about creating a safe mechanism to test new ways of working to improve outcomes for children.
Lord Hunt of Kings Heath
My Lords, I am no expert in this area, but I still have not got hold of an example of what the provision is that stops innovation taking place. Is it about reporting and bureaucracy, or is it to do with an actual statutory responsibility? I am unclear about that. The Minister must be aware that, at this rate, he has no chance of getting this through the House of Lords as it stands. It is a question of what he wants to convince the Committee and then the House at some point. Is it about allowing local authorities to do the right thing with fewer bureaucratic controls, or is it saying that one can actually stand down part of the core legislation? That is what I am unclear about.
Baroness Walmsley
Before the Minister replies, would he reflect on the fact that those of us who came to the meeting last Thursday were given what the noble Lord, Lord Hunt, is asking for—three examples of where local authorities would have liked exemptions—and that we were not convinced by any of them? In every case, we could think of another way in which that difficulty could have been got around by a creative local authority in order to produce better outcomes for children, and of course there is no other excuse for doing it. We really were not convinced.
Lord Warner
I really must help to reinforce this message to the Minister, because from what he has said so far he does not seem to get it. What we need, in writing, are the primary and secondary legislation blockages that are stopping innovation and why in those cases you cannot use the Secretary of State’s power of direction or an amendment to the statutory guidance. That is the issue, and he has not come anywhere near tackling that proposition.
Lord Nash
I heard the noble Lord the first time. I have not got very far but if I am allowed to continue I shall get to it. This power is about creating a safe mechanism to test new ways of working to improve outcomes for children. It creates a controlled, time-limited space to test new ideas. It is not about eroding children’s rights or removing the basic duties of local authorities to safeguard children. The power is not about questioning the fundamentals of what local authorities need to do, but about exploring how things could be done better.
I will try some more illustrations. I do not suppose they will get me very far but since I have more to say, perhaps people could bear with me. I shall illustrate this point with two examples. First, it is felt that on some occasions applying the full gamut of care-leaver regulations associated with children on remand, who automatically become looked-after when in custody, is not always the best option for those children. Local authorities are interested in developing a service that better responds to their needs, informed by the young person, which, where a local authority can make a professional decision, would ensure better and informed choices without an unwanted service automatically being triggered by legislation. A real-life example of that was given to us by one of our partner in practice local authorities. In this instance, the young person was returning to live with their grandmother. Applying the burdens and processes associated with looked-after children placements unnecessarily overcomplicated matters for both the authority and, most importantly, the young person and their family.
Secondly, as I highlighted at Second Reading, there is a widespread view that adoption and fostering panels do not always add value, and can often delay the process of approving prospective carers. These panels are only advisory, with the ultimate decision resting with the local authority. Local authorities explain that they think they could get to the same decision quicker without the panel in some circumstances. The freedom likely to be requested would be to remove the requirement always to have the panel in place for all cases, and for the agency decision-maker, who currently makes the decision, to continue to exercise their professional judgment. In straightforward cases, the decision would be made quicker to allow the best solution to be progressed faster so that children get the support they need. I heard what the noble Lord, Lord Watson, said about the concerns that Coram has in this respect, and we will be very happy to talk to Coram about its concerns in some detail.
I will speak to other examples as I go through my response to the amendments. In turn, the department will look to evaluate the use of the power so that we understand the impact, where there is a case for permanent changes to the legislative framework—changes that would of course come back for further scrutiny to this House.
I turn to Amendment 129, clarifying the purpose of this power to innovate. I agree that a focus on improved outcomes for children and young people is key. However, the drafting of the clauses already makes clear that the power is focused on outcomes for children and young people. Clause 15(1) refers to children’s social care legislation. The Children Act 1989 and its associated legislation is designed with the outcomes for children and young people at its core. By referencing children’s social care legislation explicitly, it is clear that the clause is directed at outcomes for children and young people.
On Amendments 130 and 131, I agree that the Bill should not lead to any changes that adversely affect the rights of children or lead to the withdrawal of support or services that they depend on. The whole point of these clauses is to allow local authorities to do things better. We do not propose to put an independent review panel in place. However, there will be a variety of safeguards in place to ensure that the power is not misused and that all applications are subject to very robust consideration before they are approved.
In particular, I draw noble Lords’ attention to the requirements both on the local authority to consult its safeguarding partners and relevant agencies and on the Secretary of State to consult Her Majesty’s Chief Inspector of Education, Children’s Services and Skills and the Children’s Commissioner. Of course, representing the views of children and young people is a key part of the Children’s Commissioner’s role, and Ofsted will also need to consider its functions of promoting the best interests of children when consulted on the use of the power. It is also important to note that any changes to primary legislation will be debated in both Houses, which in many ways constitutes the independent reviewing process that these amendments seek. In answer to the point on consultation with children in care and their representatives made by the noble Lord, Lord Wills, I agree that the voice of the child should be recognised when requested freedoms are being considered.
While I am not proposing to accept the amendment, I would like to provide reassurance that children are at the core of this provision. In most cases, we would expect local authorities to have consulted children affected by any change and in fact many of the possible changes that local authorities have discussed with us originate from requests from children, as I have already said. For example, in the case of independent reviewing officers, children have fed back to our partner in practice authorities that they do not like additional people who they do not know to be present at their case reviews discussing intimate information. More specifically, in the case of North Yorkshire, just over 400 children and young people are looked after. The vast majority are very settled and achieving well. Older young people in this position tell the authority that they find regular formal reviews unsettling and that they would like to be treated like their non-looked-after peers. There is then a much smaller number, on average 20, who are not currently settled and require regular in-depth reviews. This is one area in which a request for use of the power to innovate may well be made to make more effective use of the experienced cohort of independent officers.
The noble Lord, Lord Watson, talked about the risk assessment of exemptions. I agree that it is vital that we consider this carefully before any exemptions are agreed. We will need to do that, looking at the merits of each application from the local authority, when bringing forward regulations under Clause 15. Noble Lords may know that in responding to the DPRRC report I committed to bring forward an amendment to ensure that all regulations will be accompanied by a report setting out anticipated benefits and the protections to be put in place by local authorities to mitigate risks. That, combined with the other safeguards that we have in place, means that risk will be assessed and managed.
The noble Baroness, Lady Bakewell, raised a point about how local authorities would be chosen. I would expect any local authority that wants to apply for an exemption to demonstrate strong leadership and either strong performance or a clear trajectory of improvement consistent with the approach that it wants to test. Ultimately, the Secretary of State will not take forward any requests if she has concerns about the local authority’s ability to implement the change safely or to learn from the testing and share its insights with the wider sector. That is why I anticipate that the first application will be from our partner in practice authorities—a group of 11 of the best-performing children’s services in the country.
The noble Lord, Lord Warner, and the noble Baroness, Lady Walmsley, raised points about Professor Eileen Munro and what she wanted. She said:
“I welcome the introduction of the power to innovate set out in the Children and Social Work Bill. This is a critical part of the journey set out in my independent review of child protection towards a child welfare system that reflects the complexity and diversity of children’s needs”.
I am delighted that so many noble Lords have referred to excellent examples of innovation by various local authorities, but of course just because some innovation is taking place without changes to legislation does not mean that others will be able to innovate without making such changes. Of the examples that we have been discussing with local authorities, all need exemptions from secondary and in some cases primary legislation. I will write to the noble Lord, Lord Warner, setting out what primary and secondary legislation blockages are in place before Report.
To answer the noble Baroness, Lady Pinnock, there are no limits to what can be requested; the Secretary of State is concerned about the impact on children, and if she thinks it is appropriate, it will proceed.
However, in view of noble Lords’ concerns and suspicions about our motivation, the best way forward—in addition to writing to the noble Lord, Lord Warner, and sharing that letter with all Peers—is to have what I suggested. I hope that all noble Lords who are interested will come to a meeting with a number of local authorities and individuals where they can explain in detail why they need this power, and noble Lords who feel that they can achieve the same objective without using it can talk about that. We can have a detailed, granular discussion about specific examples, rather than a high-level discussion, which is always, in my view, rather dangerous. I commit to organising that, and I hope that all noble Lords will attend.
Lord Hunt of Kings Heath
My Lords, before the noble Lord sits down— I thank him for his response—is not the requirement really to have a meeting with parliamentary counsel to see how Clause 15(2) can be redrafted in such a way that it is clear that the kind of change that the noble Lord wishes to make is essentially small-scale and minor? The problem is that, although he has made that commitment from the Dispatch Box, none the less, this is such a huge power. It is not the issues, it is the way it is drafted. Surely there must be a different way to draft a power that allows for certain discretion in the circumstances he describes without seeming to exempt the whole of social care legislation. I suggest that parliamentary counsel might have a role to play.
Lord Nash
I think it would be much better to make that analysis when we have had the sort of meeting I am talking about and we have more visibility on particular examples.
Amendment 121A, tabled by the noble Earl, deals with support and safeguards where the power is used. I briefly return to my previous point that the power is about creating a controlled mechanism for testing, strengthening and improving the current system. It is not about removing basic rights that are essential to improving outcomes.
I give another example to illustrate the use of the power. Local authorities tell us that a carer who is either a family member or friend is often thought to be the best placement option for a child in care, but the requirement that they become an approved foster carer after a 16-week grace period can be difficult to achieve, especially where family and friends have no real desire to be local authority-approved foster carers generally. We discussed in Committee last week the important role that grandparents can play. This is exactly the sort of area where use of the power could make better use of the strengths they bring.
Exemption from this requirement could mean local authorities being able to place a child with the person to whom they have the greatest attachment. There could still be an option for the carer to become an approved foster carer if they wish, but the exemption would give flexibility for the carer and a better chance of achieving the most suitable option for the child being selected.
Returning to the amendment, requiring a local authority to reinstate existing processes and procedures upon individual request would considerably weaken a local authority’s ability to assess the effect of the power. As outlined in my example above, however, there is nothing to stop a local authority offering this level of service if it was in the best interest of the child. Let me reassure noble Lords that exemptions will be granted only for a time-limited period because the local authority and the Secretary of State are persuaded the new approach holds out the likelihood that the child or children can be better served in a different way.
In order to test and evaluate exemptions properly, I feel it is right that local authorities should not be subject to an infinite range of requirements in respect of different children, but can use their professional judgment in response to the child’s request. I remind noble Lords that if regulations made under the power are not found to have had the desired effect, they can be revoked swiftly using the negative resolution procedure. In addition, authorities are and will be subject to the usual Ofsted inspections and will be monitored via the department to evaluate and create an evidence base of what works.
I recognise that Amendment 131B reflects the recommendations of the DPRRC. I am happy to say that in my response to the Committee last week I signalled my intention to make amendments to achieve the same effect. In view of that, I hope that the noble Lord will feel reassured enough not to press his amendment at this time and will support our amendment at Report.
Finally, I turn to Amendment 132 and the interaction between this power and the corporate parenting principles. There are numerous broad, overarching duties on local authorities in children’s social care legislation in different Acts of Parliament. The corporate parenting principles are an example of such an overarching duty. Our conversations with local authorities have not been focused on these overarching duties. They want to focus on how they could change the way of working to allow their children’s social care staff to focus more on children and families themselves, not on changing their overall objectives. Specifically to exclude an overarching duty such as corporate parenting would beg the question as to why it had been singled out. Excluding some but not others could give rise to the same question. Equally, excluding all overarching duties from the many pieces of primary legislation in the area of children’s social care would make the clause unnecessarily complex.
Lord Ramsbotham
My Lords, I welcome the thought of a meeting but I would be grateful if the Minister could ensure that somebody from the youth custody arena attends it. I was extremely alarmed when he rather dismissed the example of the legal safeguard that could be lifted, of removing the looked-after status from children remanded in custody. That is very often the first time that they have had any stability in their lives and it would be tragic if it was removed.
The Earl of Listowel
My Lords, I am grateful to the Minister for his reply and for the offer of a meeting, which I am sure will be very helpful for me. I should have said in my earlier contribution that I am the patron of the National Association of Independent Reviewing Officers, so I have an interest and some experience there. I hear what he says about independent reviewing officers; in my mind, there is certainly a question about tying up so many experienced social workers in one capacity. But one of the concerns is that when a child is in a long-term placement, it may go very well but things can suddenly go wrong. One of the chief concerns that often come up when children need advocates is that while they are in a long-term stable placement, a local authority may suddenly have decided that it is too expensive so they are moved on. There is particular concern that a child may be in a stable placement for a long time and he or she may suddenly need the expertise and professional capacity of an independent reviewing officer. However, I see that there is another side to that.
Lord Watson of Invergowrie
My Lords, I thank the Minister for his response but after almost an hour of debate, we have made little progress. I think it was my noble friend Lord Hunt who said that the Minister does not seem to get the opposition to Clause 15. It is not just from these noble Lords but across different parties and the Cross-Benchers as well, who have expressed very strong views as they did in respect of Clause 9 last week. Many of the same sentiments have been repeated here today. There is deep-seated resentment and opposition to this and it will not go away through the amendments in this group just being withdrawn or not moved today.
A lot of noble Lords asked the Minister to give us some rationale as to what is driving this and the purpose behind it. The only specific thing I was able to note down in what he said was that it was to improve the provision of services to children. I think that everyone in the Room—noble Lords, the officials of the House or the department, and even the visitors in the public seats—would throw their hands up at that suggestion. The noble Lord, Lord Ramsbotham, encapsulated it when he said that introducing best practice is the way to improve things, not regulation. I urge the Minister to bear that fundamental point in mind.
I welcome the fact that we are to have a meeting and that the Minister will also speak to CoramBAAF. That is important but there are a number of organisations, and if he has not already done so, I think that some of the adoption and fostering agencies would like to meet him because, as I said, there is deep-seated opposition to this.
I do not want to rehearse the arguments and will not do so but I need to say to the Minister that, unless something in Clause 15 changes, he will be riding for a fall on Report. I hope that he will bring forward some sort of meaningful amendment that takes the sting out of some of the arguments that have been advanced over the last hour. They are very strongly felt and there is no political point-scoring here at all. If the Minister wants to make progress with this aspect of the Bill, we need to see something different when we discuss these issues in the Chamber in some weeks’ time.
The response to the amendments is nothing other than disappointing but, for now, I beg leave to withdraw the amendment. I mean it when I say that I look forward to returning to this subject on Report.
Lord Warner
“( ) Before making any exemptions or modifications under subsection (2), the Secretary of State must consider the published advice of an independent review panel established to consider whether any such exemptions or modifications are likely adversely to affect legislative safeguards or rights of children approved by Parliament.”
Lord Warner
I do not intend to move this amendment but I want to reinforce a point that has been made already. I look forward to seeing the Minister’s letter but it is not just a question of satisfying me and Members of this Committee. The letter had better be pretty convincing to many people outside, including the Association of Directors of Children’s Services, because the issue is not whether you can make some changes; as the noble Lord, Lord Hunt, said, it is the proportionality of the scope of the amendment that is called into question.
The Earl of Listowel
“Annual report on the impact of exemption on children and families
(1) In relation to each local authority exempted from a requirement imposed by children’s social care legislation by regulations made under section 15(2), the Secretary of State must report annually on the impact of the exemption on children in that area.(2) In considering the impact on children for the purposes of subsection (1), the Secretary of State must take into account the effect of the exemption on—(a) safeguarding of the children;(b) the health and well-being of the children; and(c) the children’s access to support and services.”
The Earl of Listowel
My Lords, I shall speak also to Amendments 133A and 133B. The first of these would ensure transparency and adequate information about any innovation. The second is about open and transparent consultation. I hope that they both meet the requirement of the noble Lord, Lord Watson, for much more reassurance before we move forward with this clause.
The heading of the new clause proposed in Amendment 132A is: “Annual report on the impact of exemption on children and families”. Therefore, the amendment seeks to ensure that there is an annual report and that we know the impact of the exemptions.
Earlier in Grand Committee there was a short discussion about social work practices. We heard evidence of how they are working, which was helpful for us in thinking about these matters. Several years ago, Hackney had a programme called Reclaiming Social Work. It reduced the number of children coming into care by more than a third in three years and was a model for setting up social work teams with a consultant social worker. Isabelle Trowler, the current chief social worker, and Steve Goodman, a senior social worker in Hackney, led in this model. It was well evidenced and there was plenty of information about how it worked. Professor Eileen Munro highlighted this experience in her report, many local authorities have copied the model and it is becoming more widespread.
If we really want to make a difference for children, when we innovate we need to be sure that we have evidence and measure what is happening so that we can be confident of what works and what does not. We can then expand that to other areas. Amendment 132A would ensure that there was a gathering of evidence, and it is a probing amendment to achieve that.
Through Amendments 133A and 133B in my name, I seek to ensure open and transparent consultation in this process. I welcome the Government’s proposal in the Bill to commit to consult the Children’s Commissioner, Her Majesty’s Chief Inspector of Education, Children’s Services and Skills and any other person who the Secretary of State considers appropriate.
I am worried, however, that such an important decision to exempt a local authority from children’s social care legislation should be left to a consultation process defined by the Secretary of State. Instead, I share the view of the Children’s Society and other major children’s charities that the consultation process should be open to all, with a particular focus on residents of the local area, and that it should run for the same length of time as a standard government consultation. I agree with Members who have tabled amendments explicitly to include the voices of children and their families in the consultation, and I believe that the wording of an open consultation would include young people. The consultation should be open to all.
We want, as I am sure the Government do, to encourage the many interest groups such as children’s charities that, although perhaps not directly affected by innovation, have valuable expertise on safeguarding children to voice their support or concerns through a formal process. I support the importance of making sure, as part of the consultation, that children’s and families’ voices are taken into account, and that the consultation process is carried out in an active and accessible way so that they can respond on these important issues.
Equally, it is important that the consultation process does not take place behind closed doors, and that the Secretary of State should place her response to the consultation on the record. This important accountability measure will allow interested Members of Parliament to see what evidence swayed the Secretary of State’s decision and to hold her to account on it. That is vital following the initial three-year period, when the impact of the changes on children will be assessed and the expertise in the initial consultation responses will be drawn on to assess the longer-lasting impact of statutory exemptions.
I believe that the safeguards in my three amendments will make sure that innovation can happen in a controlled way to protect children while recognising the desire to test different approaches. At the heart of the amendments is the desire to support innovation, while also showing an important level of parliamentary scrutiny and public consultation before making decisions to exempt any local authority from its statutory responsibility to children in their local area. I beg to move.
Baroness Howe of Idlicote (CB)
My Lords, I support my noble friend Lord Listowel’s Amendment 132A and his other amendments in this group. One does not need to look very far to understand why the Government are so keen to promote innovation, about which we have already heard a lot this afternoon. At present, 43 of the 87 local authority children’s services have been judged by Ofsted to be failing or inadequate. Clearly, this is highly undesirable, and we can and must do much more to ensure that the services we offer for vulnerable children are the best they can possibly be. I none the less support my noble friend’s Amendment 132A and his other amendments because I am concerned that the Bill fails to put in place rigorous and robust mechanisms to ensure that the well-being of children is not inadvertently affected by the exemption of local authorities from crucial clauses in children’s social care legislation.
In recent years, local authorities have developed some highly innovative approaches to children’s social services in areas such as Trafford. Trafford has maintained a good and an outstanding rating for the past five years, and its approach, particularly towards care leavers, has been commended by the Government. This in many ways represents the best practice that could be encouraged by the comprehensive and strengthened set of corporate parenting principles we have the opportunity to create in this very Bill. Trafford is widely considered a success story for innovation in local authorities, but this has all been achieved without the need to repeal the safeguards afforded to children through the Children Acts 1989 and 2004. I am still struggling to see where these key pieces of legislation are hampering innovation, and I would welcome it if the Minister gave examples of the benefit that the Government believe will derive from such a provision.
Lord Watson of Invergowrie
My Lords, I will speak to Amendment 133ZA in this group, in my name and that of my noble friend Lord Hunt of Kings Heath. Clause 17 outlines the consultation process that local authorities and the Secretary of State must undertake before an authority makes an application to exempt or modify legislation in order to test a different way of working. This is a probing amendment to explore how a requirement could be placed on a local authority to consider how such an application could affect the needs of children with special educational needs and disabilities, in addition to consulting local safeguarding boards.
There are concerns that legislation meeting the definition of children’s social care legislation in Clause 19 which can be subject to exemption or modification includes any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 that relates to those under 18. As drafted, this covers more than 40 pieces of legislation mentioned in that schedule. The Bill could therefore allow exemption or modification of a wide range of social care support that children with SEND currently rely on. Indeed, those with SEND constitute the vast majority of children in need as defined under Section 17 of the Children Act. This group is disproportionately likely to be impacted by exemptions or modifications to children’s social care legislation. However, there is no mechanism explicitly to consider the impact on this group of changes to legislation.
Section 3 of the Children and Families Act 2014 will also be impacted by the Bill, with implications for those receiving social care and health provision as part of an education, health and care plan. Much of this impact could be unintended or unforeseen without specific measures being taken to identify them proactively. There is also the issue of a postcode lottery and creating parallel systems by granting some areas exemptions from the general law. So there is a real need for local authorities to conduct a review of the potential effect of different ways of working on the authority’s ability to meet the needs of children with SEND. It would be helpful if the Minister could give an assurance that some groups will not be prioritised over others if a local authority were to be exempted from some elements of the current provision.
Baroness Evans of Bowes Park
My Lords, Amendments 132A, 133A, 133B and 133ZA would amend the consultation, application and reporting requirements that already support the proposed power to test new ways of working. I should say from the outset that our response to the Delegated Powers and Regulatory Reform Committee, which was mentioned earlier and which evidently noble Lords have not seen, proposed putting forward a government amendment which provides for the laying of a statement every time the power is used in Parliament, with any regulations made, explaining how any change is expected to meet the purpose of the power—better outcomes for children and young people—and the protection that a local authority making an application to use the power intends to put in place. I hope that this move will address many of the concerns raised by noble Lords. We certainly believe that such statements will help the House if and when it comes to scrutinise any orders under Clause 15. None the less, I will say a few further words on consultation and reporting.
Clause 17 sets out proportionate expectations of consultation for both the local authority and the Secretary of State. For the local authority, this would mean consultation with health agencies, the police and others; for the Secretary of State, it would mean the Children’s Commissioner and Ofsted. The Secretary of State may also consult such others as she considers appropriate in each individual case. I am confident that, according to the freedom requested, the appropriate persons or bodies will be consulted to ensure that the right decision is made and that, where appropriate, the needs of children with special educational needs will of course be taken into account. But each decision needs to be made on a case-by-case basis; we are not persuaded that standardised, formal consultation would be appropriate. However, we would expect the statements that I have already described to deal with the outcomes of consultation. Of course, the reports would be made available to the public, as would the orders made—which I feel addresses the question of making public any changes made under Clause 15.
Finally I will say something about the annual report that is proposed. We entirely agree that tracking and capturing the progress of exemptions should take place. This will be crucial in coming to a view on whether lasting changes should be made to children’s social care legislation. We will be evaluating the use of the power, and noble Lords will note the requirement to report on how far changes have achieved their purpose if the initial testing period is to be extended. If it is not extended then of course things will revert to the previous position. This seems to be a way to achieve the same objectives in a more proportionate way than an annual review.
I also make the point, as highlighted by the noble Baroness, Lady Howe, that Ofsted will inspect and report in the normal way, providing another valuable source of public information. I hope that on the basis of our proposal to bring forward amendments, noble Lords will not press theirs.
The Earl of Listowel
My Lords, I thank the Minister for her reply and my noble friends for their support for my amendments in this group and in the debate that we have just had. I am particularly pleased to hear of the Statement that is coming forward from the Government; that sounds like a helpful proposal. I am somewhat reassured to be reminded that the Children’s Commissioner will be consulted; she does extraordinarily good work in listening to the voice of young people in care, and I am sure her contribution will be very important. I will look at what the Minister has said. In the meantime, I beg leave to withdraw the amendment.
““relevant agency”, in relation to a local authority area, has the meaning given by section 16E(3) of the Children Act 2004;“safeguarding partner”, in relation to a local authority area, has the meaning given by section 16E(3) of the Children Act 2004;”
“National action plan for the welfare of unaccompanied children
(1) The Secretary of State must, in consultation with the Local Government Association, the Association of Directors of Children’s Services and the Children’s Commissioner for England, publish a national action plan for the welfare of unaccompanied children.(2) The national action plan for the welfare of unaccompanied children must set out the steps the Secretary of State will take to ensure that local authorities are able to safeguard and promote the welfare of relevant children within their area and in particular to ensure that relevant children have adequate access to—(a) legal advice;(b) mental health and other healthcare provision; (c) appropriate accommodation, including foster care provision and semi-independent accommodation;(d) social work support;(e) the education system;(f) English language education;(g) any other services necessary to meet the needs of relevant children.(3) The national action plan for the welfare of unaccompanied children must set out the process by which information about children to be included in the scheme provided for under section 67 of the Immigration Act 2016 (unaccompanied refugee children: relocation and support), is to be communicated to local authorities, including details about—(a) age;(b) any known medical needs;(c) any accommodation preferences expressed by children;(d) linguistic competencies and requirements;(e) any known special educational needs;(f) any other available information necessary to allow local authorities to meet the needs of relevant children.(4) The national action plan for the welfare of unaccompanied children must describe the additional infrastructure that will be put in place to ensure that the welfare of relevant children is protected during and after transfers under section 69 of the Immigration Act 2016 (transfer of responsibility for relevant children), including details about—(a) funding to be provided to Regional Strategic Migration Partnerships;(b) plans to draw on the expertise of service providers; and(c) any other plans to ensure that appropriate expertise and training is available to relevant authorities.(5) In this section—“local authority” means a local authority within the meaning of the Children Act 1989 (see section 105(1) of that Act);“relevant child” means—(a) a person under the age of 18 who is unaccompanied and has made a protection claim which has not been determined,(b) a person under the age of 18 who is unaccompanied and who requires leave to enter or remain in the United Kingdom but does not have it, or(c) a person under the age of 18 who is unaccompanied and who has been granted humanitarian protection, refugee status, discretionary leave or limited leave to remain in the UK as an unaccompanied asylum seeking child.“service provider” means an organisation providing basic services to relevant children including legal advice.”
Lord Dubs (Lab)
My Lords, this amendment is concerned with the well-being of unaccompanied children whether they have come as refugees straight from Syria and other parts of the region or from parts of Europe, as was determined by an amendment that passed this House and the House of Commons under the Immigration Act.
These are clearly sensitive children who have been through trauma. We know they may have been subject to trafficking; they may have been victims of crime: they may have suffered sexual violence; they may have been lured into debt slavery—all sorts of things may have happened to them. Some may still be in danger, which is why there is an urgency to bringing them over to this country. Clearly, though, everyone is agreed that they are vulnerable and that they need help and support.
I have had discussions with the Local Government Association about this, and quite understandably the LGA would like to have some assurances about longer-term funding arrangements for councils that are looking after unaccompanied children. Subsection (1) would require the Secretary of State to consult organisations representing local authorities and providers of children’s services, as well as the Children’s Commissioner, before publishing a national action plan for the welfare of unaccompanied children. That is a rather grand title but I think we know what it means.
Subsection (2) includes a non-exhaustive list of the kind of vital services that children must be able to access wherever they are placed in the country. For example, they will need specialist immigration legal advice to help them know where they stand. They may need special educational needs support. They may have been particularly traumatised by the experiences through which they have gone and those that I described. It is important that they have active health service support. They may have suffered the trauma of war, separation from family members for months or even years, they may have had long journeys in perilous and unsanitary conditions. All of those are important, as is education. Many of these children will not have had an education for some time and it is important that we try to get as many of them as possible to this country by September in order that they can benefit from the beginning of the school year.
I should say that not all of them are traumatised. I was talking to a young man from Syria who had spent a year travelling from the region before he got to Britain. I met him on the green outside. In a chat with him he said his main ambition was to go into politics, so all is not yet lost. Perhaps he did not know enough about our politics; perhaps when he learns a bit more he may think a different career is more important. Those services are crucial and it is important that the national action plan for unaccompanied children takes them into account.
In certain local authorities, Kent in particular, a large number of unaccompanied children are getting help and Kent County Council is clearly having difficulties. I think there is a scheme already but it could be improved to help children who are transferred between local authority areas, mainly to ensure that there is an evenness of pressure and demand on local authorities. The Government have recently announced an enhancement in the funding to be made available, but local authorities are understandably concerned about longer-term provision. If they have money for only one year, they need to know what will happen afterwards.
There is great willingness on the part of local authorities—I have met some. They are willing and anxious to help; they want to be able to get on with it on the basis that they know where they are and can manage to deal with it. For example, there are greater difficulties in London, where housing costs are higher than in other parts of the country, but even in London, the local authorities I have met are willing to step up to the mark and provide accommodation for people, whether under the vulnerable persons scheme or to look for foster parents who are appropriate for their needs. Of course, foster parents will have to be monitored carefully, as are all foster parents. That is all part of the extra responsibility that falls on local authorities.
The amendment is clear: it is intended to provide the right level of support and ensure that everything is handled as well as it can be for the sake of very vulnerable children. I know that the expression “national action plan” sounds a bit pompous—I could not think of a better one—but I think we understand what it means and I hope that the Government will accept it.
I should add that I am due to meet the Immigration Minister tomorrow. I had hoped that that would have happened before now, because then I might have been able to modify what I have said; but I am doing so prior to the meeting with him. I had discussions with the Home Secretary and the Immigration Minister some time ago, and he assured me that the Government would enter into the letter and spirit of the amendment. That is positive, so I look forward to a good outcome from my meeting with him tomorrow. I beg to move.
Lord Ramsbotham
My Lords, I support the noble Lord, Lord Dubs, in his amendment and confirm that the issue of sharing children around the United Kingdom has been raised many times because social services near the ports of entry were becoming swamped and these children were being deployed right across the country, which led to inconsistency in their treatment—some people putting them in bed and breakfasts, some looking after them properly.
I raised the issue of unaccompanied asylum-seeking children at Second Reading. I am glad that the Minister has arranged for the meeting with Mr Brokenshire because, among other things, there is a tension between the Immigration Act and the Bill over when such children cease to qualify for support. The Immigration Act makes it clear that that is at age 18, whereas the Bill seeks to extend the support until 21 or 25.
Another clause in the Immigration Act, which I mentioned at Second Reading, states that if an unaccompanied asylum-seeking child wishes to appeal against deportation following the failure of his appeal, he now has to go back to the country of origin even though he may have been born in this country before he can make the appeal. That is denying him all the rights that he has earned during his time in this country. We must remember that two-thirds of these children are actually in foster care now, quite apart from the numbers in care. I am glad that the noble Lord has raised this amendment and I hope that, whether revised or not, it will appear in the final Bill. I am sure that the noble Lord will wish to attend the meeting with Mr Brokenshire and the Minister on this very issue.
Baroness Pinnock
I am very pleased that the noble Lord, Lord Dubs, has tabled the amendment and again raised the issue that the noble Lord, Lord Ramsbotham, and I referred to at Second Reading. At that time I referred to the investigation by the EU Sub-Committee on Home Affairs into unaccompanied migrant children. It raises some important issues that reflect on what the noble Lord, Lord Dubs, has tabled in his amendment. One or two examples from the report expand on the issues raised. Evidence from Kent social services states:
“There have been issues in respect of the apparently competing demands of the immigration legislation and the childcare legislation in respect of over-18’s”.
That was the fundamental issue that I raised at Second Reading. We are in danger of creating a two-tier approach to care leavers. We quite rightly say that care leavers who are born in this country will receive support until the age of 21 or 25, but unaccompanied minors who have been through the most awful and traumatic experiences are suddenly deemed at 18 to be able to act as adults. Further evidence summarises the problem facing unaccompanied migrant children approaching 18. The report states:
“Those children who are given temporary leave on the basis that they are children are suffering terribly in their protection needs and, as has been identified for many years, their leaving care provisions. We recognise how much children need help in that transition to adulthood. For most of us in this country, we do not suddenly feel and behave like adults when we turn 18”.
We had evidence of the potential consequences of unaccompanied minors, as they approach 18, not given leave to remain but not wishing to return to the troubled area of the world from which they came. One of the consequences is:
“The severe delays experienced by some unaccompanied migrant children in their asylum claims and in accessing services may compound their lack of trust of state authorities. In such circumstances, smugglers and traffickers may come to be regarded by children in some cases as a preferable source of support—‘by choice, through desperation, or through exploitation and abuse’”.
That is the evidence that I have referred to. I do not think anyone in the Committee, which has now spent 20 hours or more considering how we can improve care for the most vulnerable children in our society, would want this particular group of young people to be affected in this way. As we approach Report, I hope that the Government can bring forward their own amendments to help to address the issues of unaccompanied minors as they approach care-leaving at 18, to provide them with the support they desperately need and confidence that they are not going to continue to be returned to the war-troubled areas of the world whence they came.
Baroness Howarth of Breckland (CB)
My Lords, I apologise for not being here sooner, but I was the last person standing to chair the All-Party Parliamentary Group for Children this afternoon. That is where I have been, and it is always revealing. I support the amendment because I have raised this issue on a number of occasions. I hope the Minister will look at this, though he knows well that I do not like long amendments; lists in Bills are not helpful.
I cannot understand why, from the moment when the child is identified as an unaccompanied minor in a school, we do not start not only to stabilise the child’s status but to look at their mental health issues. We know of the trauma they have been through. I know that mental health services are poor across the country—we have heard that repeatedly—but these children have very particular needs. I am appalled when I learn that often schools do not even know the status of these children. I have met a number of youngsters who realise their immigration status only when they are about to go to university and discover that they cannot. Instead, they spend a year on appeal, appealing being deported to countries about which they know nothing. One young man I met had been here from the age of six. He had been in a foster home and suddenly discovered that this was his status.
I am sure that that is not the way this Government wish to treat children. These children happen to be in this situation only by chance. There might be another child next door who happened to have come in to the country, or be part of a family, on a very different basis. We must treat these children equally.
I am not against returning children home when that is the appropriate answer. We know that there have been very successful programmes of returning children to their country of origin with the right support and understanding; but we have to start sooner than we are starting now, get the position of the child right, make continuous assessment and not leave it until their 18th birthday, when it becomes a crisis.
Lord Judd
My Lords, I strongly support my noble friend. His experience and commitment in this sphere are well known in this House. I wish his talks with the Minister more success tomorrow. It seems essential that the Government take what my noble friend proposes very seriously. Others have stressed, and I underline it, that the trauma through which these youngsters have been is almost indescribable. It is more than distressing; it is deplorable. They need to be helped to build future lives. An action plan of this kind will help, and it is very important. Yet no action plan will be better than the culture of those who are operating it. From that standpoint, all of us in politics have a responsibility to set the tone for what is expected. We have a duty of care and responsibility to these children. We say that in our post-EU future we want to be prominent members of the international community. There is no better way that we could establish a reputation to help us in that future than by becoming leaders in answering this challenge, and the commitment with which it is answered.
In our vocabulary, in the speeches of Ministers and opposition spokesmen and all the rest, it is therefore terribly important to bring home that if we mean anything at all when we talk about our civilisation, our values and so on, this responsibility to children must be there. For those who are to operate any scheme, it is terribly important that what the children need is stability of relationships and a feeling that there are genuine, reliable friends looking after them—not just a system but real friends on whose shoulders they can lean and cry from time to time, and from whom they can get reliable counselling and advice on the way forward. What they need is human relationships in their future. This framework will therefore have to be filled by the culture which we and all others are generating about responsibility.
The Earl of Listowel
My Lords, I, too, thank the noble Lord, Lord Dubs, for tabling this amendment. I join in supporting, as have all noble Lords, what he proposes: a national action plan for the welfare of unaccompanied children. I have to reflect for one moment that the current changes, with the separation of the UK from the European Union, must limit to some extent the important international activity that can reach out to countries such as Ethiopia in the Horn of Africa, and support them to promote stability. The EU is less able to do that without us and we are less able to do it without the EU, so more of these children may come to this country in future because of the decision that was recently taken. I regret that.
I was grateful to the Minister for what he said in his letter on the Committee stage, which I received this morning. In it, he talked about Section 10 of the Children Act 2004. At that time, we very much regretted that that Act did not include a duty on the Immigration Service to promote outcomes for vulnerable children. It does for various other services, as the letter lays out, but I hope we can look at including in the Bill a duty on the Immigration Service to work with local authorities to promote outcomes for these children. Perhaps they should train social workers, for instance, to understand immigration issues and ensure that children get the right advice early on. In the past, there was a champion for children within the Immigration Service. In anticipation of our meeting tomorrow, can the Minister tell us who that champion is currently and what he is doing to promote children’s welfare? I support this amendment and I look forward to the Minister’s response to it.
Lord Storey (LD)
My Lords, I have taught three unaccompanied children at my school—obviously this was before the conflict in Syria—and we were making it up as we went along. There was no clear plan of what to do or what support there was. The three boys, as they were, were literally processed in Liverpool and arrived at our school. There was then a time lag while we and the foster parents to whom they eventually went tried to find someone to help with the language and with any other issues that they had. That is why the amendment in the name of the noble Lord, Lord Dubs, is so important. I could not dissent from a single word of it and, had this provision been available when those three boys came to my school, it would have helped tremendously.
Since then, of course, the unaccompanied children coming to this country have been traumatised by conflict and war. The noble Lord, Lord Judd, is absolutely right that what they need above anything else is stability in their lives. I agree with my noble friend Lady Pinnock: if the Government are not happy with the wording of the amendment, can they for goodness’ sake please come forward with amendments that will deal with this matter? There is the issue of when these young people reach the age of 18. We have grappled with that in a number of debates on various occasions. I found it heartbreaking when one of the unaccompanied children was nearing his 18th birthday and was going to be returned—to Mongolia, as it happened. Given that we as a country have now agreed to accept an additional 20,000 children, I hope that a national plan is in place for them.
Lord Watson of Invergowrie
My Lords, I, too, thank my noble friend Lord Dubs for bringing forward this amendment. The standard of debate has been high and I do not want to add too much more to it. The experience of my noble friend Lord Dubs in this matter—most recently on the Immigration Bill—is well documented and hugely appreciated. When unaccompanied children come to this country, however they arrive here, and try to fend for themselves, it is fraught with all sorts of dangers. The noble Lord, Lord Storey, has just talked about children at school but many of these children never reach school because they are kept in an environment where they are exploited; they are not educated or made into good citizens. The noble Baroness, Lady Pinnock, made a point about a two-tier society, and that should resonate with us.
My noble friend Lord Judd, in talking about the action plan, spoke of setting the tone, but I would put that tone into a wider setting. One or two noble Lords referred to the events of a couple of weeks ago which were described as—it is a description that I would subscribe to—pulling up the drawbridge on the world to some extent, and that is the way it is viewed. Britain’s reputation has plummeted and has been matched only, it would seem, by the value of the pound in the last two or three weeks. We need to look at positive ways of showing that that is not all we are about.
I was profoundly depressed to read a report at lunchtime by a man called Mark Hamilton, who leads for the National Police Chiefs’ Council. He was reporting on an unprecedented spike in hate crime in the country within the last three weeks, directly related to the vote on 23 June. If we have an opportunity to show that we can do different and more positive things and that, despite the impression we have given, we are outward looking and welcoming as a country, then small measures can build into larger things. I think that this amendment is one of those acorns that may grow into something much more substantial.
I wish my noble friend Lord Dubs well in his meeting with Mr Brokenshire. I hope that the Minister will go to that meeting as well so that a way can be found of accommodating this amendment. It is important not just for the framework of this Bill and not just for the individuals concerned but potentially for the way that we are perceived as we approach difficult situations and respond to tragedies in other parts of the world. For that reason, I very much hope that a positive outcome for the amendment will be found, because it certainly deserves it.
Lord Nash
My Lords, I am grateful to the noble Lord, Lord Dubs, for his amendment. I recognise that it seeks to safeguard and promote the welfare of this vulnerable group, and I assure him that I appreciate the sentiment and good will behind it. I also appreciate the strength of feeling in this Committee about the plight of unaccompanied minors who seek refuge in the UK, as illustrated by the contributions to the debate by other noble Lords, and I share those feelings.
The amendment seeks to ensure clarity on the action that will be taken and the support that will be offered to local authorities looking after unaccompanied children. Under the Children Act 1989, unaccompanied children become looked-after children once they have been accommodated for 24 hours. They will then have their welfare promoted in the same way as any other looked-after child. I emphasise that their country of origin and the circumstances under which they arrived in the UK will have no bearing on the support that these children are entitled to.
The number of unaccompanied asylum-seeking children has risen significantly in recent years. In 2015 we saw a 56% increase in the number of unaccompanied children claiming asylum in the UK. However, as noble Lords have pointed out, until now the majority of unaccompanied asylum-seeking children have been cared for by a handful of local authorities. This has placed a considerable strain on their children’s social care services, which sometimes has been to the detriment of local children for whom the local authority has corporate parental responsibility. That is why the Government on 1 July launched a new voluntary transfer scheme that encourages all local authorities to participate in the care and support of unaccompanied asylum-seeking children who arrive in the UK.
The National Transfer Scheme was created after extensive consultation with the Local Government Association, the Association of Directors of Children’s Services and individual local authorities. The scheme is based on the principle that no local authority should be expected to care for more unaccompanied children than its services are able to provide for—whether asylum-seeking children, as the majority will be, or unaccompanied refugee children brought to the UK through our resettlement scheme.
The noble Lord, Lord Dubs, raised the point about funding. To support the National Transfer Scheme the Government have increased the amount of funding that they will provide to local authorities caring for unaccompanied asylum-seeking children. Annual support for each child aged under 16 has risen from £35,000 to £42,000, and each unaccompanied asylum-seeking child aged 16 or 17 will attract £33,000 per annum. This represents a 20% and 28% increase in funding respectively.
Because we are increasing the number of local authorities that look after unaccompanied children, these children will be better able to access services such as mental health and other healthcare services, and local authorities will have more capacity to deliver excellent social work support and care. Local authorities will also be able to prepare themselves and commission the new services that are required, such as appropriate accommodation.
The National Transfer Scheme includes a rigorous administrative process by which the Home Office and the local authority in which the child first presents are able to collect information about each child and then ensure that the local authority receiving the child receives all that information. The scheme seeks to build on existing regional structures and use the regional strategic migration partnerships to co-ordinate regional hubs and enable the regional pooling of knowledge and resource.
A central administrative hub based in the Home Office will work with the regional hubs to ensure a nationally co-ordinated but regionally implemented scheme. Funding that might be provided to the regional hubs via the regional strategic migration partnerships is currently under review, while each region is considering its own data, process and resource requirements. The Home Office will consider any proposals for regional structures to underpin the scheme. Service providers are being encouraged to contact the regional hubs to share their expertise. We know that some regions are already discussing how to pool resources and share expertise.
In addition, two training initiatives are under way. I can announce today that the Department for Education will commission an organisation to deliver training for the foster carers and support workers of unaccompanied asylum-seeking children who are at risk of going missing from care due to being onward-trafficked. That is a new provision. In collaboration with the Department for Education, the Home Office has already said that it will commission a training programme for the existing independent advocates, who are provided for in statute. This will improve their awareness and understanding of the specific needs of trafficked children and how to support them.
Noble Lords will appreciate that a great deal is happening in this area to promote better support, and the details are laid out in the scheme. While the support and care of unaccompanied asylum-seeking children is undoubtedly an important issue, I do not believe that a published national action plan for their welfare is required, given all that is happening under the National Transfer Scheme.
The noble Earl, Lord Listowel, asked about the Children’s Champion. The Office of the Children’s Champion will remain in the Home Office to ensure that all children’s safeguarding issues are addressed and attended to. In addition, the Children’s Commissioner in the Department for Education speaks on behalf of this group of children.
The noble Lord, Lord Judd, asked about asylum applications. It is always open to a person to make an application for asylum. There is no age barrier and as soon as an asylum application is lodged, it will always be considered.
The Government remain committed to ensuring that Parliament is kept informed about these issues. No one should be in any doubt of our commitment to bring vulnerable refugee children from Europe to the UK, as underpinned by the Immigration Act 2016. Unaccompanied refugee children with family connections to the UK continue to arrive from France and other European countries. We are also in active discussions with the UNHCR, UNICEF, NGOs and the Italian, Greek and French Governments to strengthen and speed up the mechanisms to identify, assess and transfer to the UK children who meet the criteria where it is in their best interests. This is in addition to the support for unaccompanied asylum-seeking children who arrive from Europe without any assistance. Last year, there were over 3,000 claims for asylum in the UK from unaccompanied children.
I will reflect on the points that noble Lords have made and that will no doubt be discussed in the meetings with Mr Brokenshire. I hope that the noble Lord, Lord Dubs, will feel reassured enough to withdraw the amendment.
Lord Dubs
I am grateful to the Minister. I want to read what he has said, because he has given us quite a lot of information. I hope I am right in thinking that, although he does not like the idea of a national action plan, the Government are by and large giving effect to the elements within it. We may not call it a national action plan but, if the work is being done, then so much the better. I repeat that I want to read his speech because he has said quite a lot and I want to think about it. I am very grateful to all noble Lords who have contributed to this debate and given unanimous support for such action. I am also grateful to Liberty and other organisations, which were very helpful to me as I prepared for this debate by providing background information and so on.
I want to say two things. First, I went to Calais some time ago and saw for myself what at least some unaccompanied child refugees are going through and have gone through. I saw that from meeting some of them. In fact, I sent the Home Office their details in case they met the criteria for the scheme under the amendment to the Immigration Bill. I have seen that for myself.
Secondly, I believe there is a lot of public support for a positive approach to unaccompanied child refugees. That is evidenced by the mass of emails I have had, almost all of which are in favour of it. My general feeling from going to local areas and speaking at meetings is that there seems to be a lot of support for it. It is quite a popular issue. If handled properly and well, we will find that these young people go on to make a positive contribution to the future of this country.
Lord Dubs
I agree entirely with my noble friend. That is why I have said that if as many children as possible could come to Britain in time for the beginning of the school term, they would not lose another school year—many of them have lost one or two school years in the course of their journeys, being in refugee camps and so on. So I am not saying all in the garden is lovely; I was trying to be nice to the Minister.
I will make one last comment. I mentioned that I am having a meeting with the Immigration Minister tomorrow. I am not sure whether I should have said that, but I cannot see any reason why I should not have done so. I thought it was only fair to say that that was under way. Had this debate taken place after my meeting with him, I might have fed into it some of what I had learned. I beg leave to withdraw the amendment.