Children and Social Work Bill [ Lords ] (Eighth sitting)

(Limited Text - Ministerial Extracts only)

Committee Debate: 8th sitting: House of Commons
Thursday 12th January 2017 Public Bill Committees

[Mrs Lewell-Buck]

As we have discussed previously in Committee in relation to my proposed amendments to clause 3, care leavers are particularly vulnerable to early pregnancy and to losing a child to the care system or adoption. That, on top of the feelings that many new parents have, brings additional challenges.

Under the Children and Families Act 2014, babies and children who are looked after, either under a care order or by way of a voluntary agreement under section 20 of the Children Act 1989 with the child’s parents, can be placed under foster for adoption with potential adopters who are approved as foster carers. That was a welcome move, but as with many legislative changes, some of the consequences and pitfalls of the legislation were not known until it became embedded. We now have a situation whereby a child who is looked after under section 20 may be placed in a foster for adoption placement without their young parents having had a right to free independent legal advice and representation, and without any court scrutiny of the process or any court decision that the child should be permanently removed from their parents. Once a child is living with a potential adopter, it is much harder for the parent to persuade the court that the child should be returned to their care, because of the status quo argument, which is aimed at minimising disruption for the child.

New clause 24 would deal with that injustice. It would ensure that where a parent was in care themselves or a care leaver and a foster for adoption placement was proposed for their child who was voluntary accommodated, that parent would be entitled to non-means-tested and non-merits-tested public funding. That would be entirely consistent with what is available to persons with parental responsibility during the pre-proceedings process.

There are also a small number of cases in which parents are not entitled to non-means and merits-tested legal aid when the court is deciding, following an application from the local authority, whether to make a placement order for a child. A placement order permits the local authority to place the child for adoption. In such circumstances, the local authority and the child will have a legal representative at court, but the parents may not, because there have been no earlier care proceedings—for example, where a voluntarily accommodated child has been in a foster for adoption placement, because in that situation a young parent may have had no legal aid—or because care proceedings have concluded and a placement order application is subsequently made.

Young parents who are themselves in care or care leavers are at particular risk of that injustice. The Centre for Social Justice reported in 2015 that 22% of female care leavers become teenage mothers—that is three times the national average—and that one in 10 care leavers aged 16 to 21 have had a child taken into care.

Sir James Munby, president of the family division, has cited the observation of Mr Justice Baker:

“The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority.”

Given that a placement order is equally if not more draconian, the same rationale should apply.

New clause 25 would close the loophole and give parents legal advice and representation when the state is proposing to remove their child or children from their care. Surely the Minister can see that, as things stand, there is the potential for miscarriages of justice, and that miscarriages of justice are taking place.

[The Minister for Vulnerable Children and Families (Edward Timpson)]

I thank the hon. Lady for tabling new clauses 24 and 25. They seek to extend access to free legal aid to parents who are themselves looked-after children or care leavers and whose children have been voluntarily accommodated under section 20 of the Children Act 1989 and are to be placed in a foster for adoption placement or are subject to a placement order application. A long-established view enshrined in law is that children are best looked after within their family unless intervention in that family’s life is necessary. Indeed, that is one of the fundamental principles of the 1989 Act.

When children are looked after, provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that came into force in April 2016 mean that legal aid is available to parents in specified public law family proceedings. That includes legal services relating to care orders, as well as placement and adoption orders, and incorporates advice in relation to orders that are contemplated.

A local authority cannot accommodate a child voluntarily under section 20 without parental consent, and in such circumstances the parents may remove them from the local authority accommodation at any time. However, when the local authority considers that the child is at risk and that it would be in their best interest to remain looked after, it may apply for a care order. When a local authority informs parents of the intention to initiate care proceedings, those parents, including those who are looked after or are care leavers, become eligible for civil legal services free of any means test in the usual way.

However, I understand the concerns that have been raised about the application of fostering for adoption to voluntarily accommodated children. When a local authority starts to consider adoption as an option for a child, the adoption agencies regulations already require the local authority to provide a counselling service for the child’s parent or guardian, including explaining to them the procedure and legal implications of adoption. They also require the local authority to notify the child’s birth parents in writing that it has decided to place the child in a fostering-for-adoption placement before the local authority’s nominated officer can approve the placement. Those provisions apply to all parents, including those who are looked after or are care leavers.

In relation to care leavers and placement order applications, we are not aware of any care leaver who has been refused free legal aid to challenge an application for a placement order. If the hon. Lady has examples or has been made aware of cases where that has happened, it would be helpful if she shared them with us to that we can investigate them.

When a local authority applies for a placement order outside care proceedings, the vast majority of care leavers will be entitled to free means-tested legal aid, as they are likely to meet the criteria. However, in the light of the points raised by the hon. Lady and, I believe, the Family Rights Group as part of this debate, I have asked my officials to talk to their counterparts at the Ministry of Justice, which holds responsibility for the legal aid budget, to see whether there are any gaps that need to be addressed. I hope that on that basis, the hon. Lady will withdraw the motion.

[Mrs Lewell-Buck]

On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 27

Placing children in secure accommodation elsewhere in Great Britain

“(1) Schedule (Placing children in secure accommodation elsewhere in Great Britain) ends at the end of the period of two years beginning with the day on which this Act is passed.”—(Mrs Lewell-Buck.)

This new clause would revoke provisions in the Bill that enable local authorities in England and Wales to place children in secure accommodation in Scotland, and vice versa, two years after the Act comes into force.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

Division 18

Ayes: 5

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Labour: 5

Noes: 8

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Conservative: 8

New Clause 28

--- Later in debate ---

[Edward Timpson]

I am genuinely grateful to the hon. Lady for tabling the new clause, because she raises what is in some ways a very harrowing and real issue. If at all possible, and despite the many disappointments I have thrust upon her over the past few weeks, I will put her mind at rest and explain the current process with regards to child-to-child abuse as well as the work my Department has planned for the near future.

As the hon. Lady said, “Keeping children safe in education” is statutory guidance that all schools in England must have regard to when carrying out their duties to safeguard and promote the welfare of children. That guidance sets out that all schools should have an effective child protection policy that includes procedures to minimise the risk of child-to-child abuse and sets out how allegations of such abuse will be investigated and dealt with. The policy should also be clear on how victims of child-to-child abuse will be supported and should reflect locally agreed inter-agency procedures put in place by the local safeguarding children board and, in future—as a consequence of the Bill—any arrangements by the safeguarding partners.

If a child has been abused by another child, the school should raise a referral with the relevant local authority’s children’s social care department, and possibly, depending on the circumstances, with the police. Local authority social workers will also be able to consider conducting inquiries under either sections 17 or 47 of the Children Act 1989; those inquiries will consider both the abused child and the abuser.

Schools should work in partnership with social workers throughout those processes. Schools are best placed to handle each case of child-to-child abuse because of the unique circumstances of each of those cases, but with the help and support of social workers, guidance from the local safeguarding children board—and, in future, from safeguarding partners—and with reference to “Keeping children safe in education”. New, separate guidance is not the answer; making the existing framework and suite of guidance documents work more efficiently and effectively is. “Keeping children safe in education” is under review and will be updated as appropriate to address, among other things, any changes introduced by the Bill.

I am sure the hon. Lady is aware of the recent inquiry by the Women and Equalities Committee into sexual harassment and sexual violence, which we discussed during an earlier Committee sitting. In its response to the Committee’s report, and noting the hon. Lady’s view that the guidance on child-to-child abuse needs to be clearer, we are committing to reviewing how child-to-child abuse is reflected in that statutory guidance. My officials are in the process of setting up working groups with sector experts to do just that.

Any additional guidance for schools on child-to-child abuse would be best placed in the section already dedicated to that in “Keeping children safe in education”, because that is the main statutory document that every school has to follow. I assure the hon. Lady that my officials will work closely with those working groups to consider the best way to reflect any further guidance on child-to-child abuse in the statutory guidance as appropriate. That guidance will also address the changes to the multi-agency working arrangements provided for in the Bill as soon as possible.

Before I ask the hon. Lady to withdraw the new clause, I believe this is the last time I will be speaking at any length during the Committee stage of the Bill, and so I want to put on the record my thanks to you, Mrs Main, and to Mr Wilson for your purposeful and pragmatic chairing of the Committee. I also thank the Clerk and other Committee officials for their efficient and professional administration of proceedings; my Whip, for his exemplary stewardship; my Parliamentary Private Secretary and my hon. Friends for their considered attendance; Opposition Committee members for their engagement and constructive debate on these important issues; and finally, officials from my Department for the excellent support they have given me throughout the Bill’s Committee stage—I hope that that will continue on Report. With that ringing in their ears, I ask the hon. Lady to withdraw her amendment.

[Mrs Lewell-Buck]

Without going through the same list as the Minister, I thank everyone. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Schedule 1

Placing children in secure accommodation elsewhere in Great Britain

“Children Act 1989

1 The Children Act 1989 is amended as follows.

2 (1) Section 25 (use of accommodation in England for restricting liberty of children looked after by English and Welsh local authorities)—

(a) is to extend also to Scotland, and

(b) is amended as follows.

(2) In subsection (1)—

(a) for “or local authority in Wales” substitute “in England or Wales”;

(b) after “accommodation in England” insert “or Scotland”;

(3) In subsection (2)—

(a) in paragraphs (a)(i) and (ii) and (b), after “secure accommodation in England” insert “or Scotland”;

(b) in paragraph (c), for “or local authorities in Wales” substitute “in England or Wales”;

(4) After subsection (5) insert—

(5A) Where a local authority in England or Wales are authorised under this section to keep a child in secure accommodation in Scotland, the person in charge of the accommodation may restrict the child’s liberty to the extent that the person considers appropriate, having regard to the terms of any order made by a court under this section.”

(5) In subsection (7)—

(a) in paragraph (c), after “secure accommodation in England” insert “or Scotland”;

(b) after that paragraph, insert—

“(d) a child may only be placed in secure accommodation that is of a description specified in the regulations (and the description may in particular be framed by reference to whether the accommodation, or the person providing it, has been approved by the Secretary of State or the Scottish Ministers).”

(6) After subsection (8) insert—

(8A) Sections 168 and 169(1) to (4) of the Children’s Hearings (Scotland) Act 2011 (asp 1) (enforcement and absconding) apply in relation to an order under subsection (4) above as they apply in relation to the orders mentioned in section 168(3) or 169(1)(a) of that Act.”

3 In paragraph 19(9) of Schedule 2 (restrictions on arrangements for children to live abroad), after “does not apply” insert “—

(a) to a local authority placing a child in secure accommodation in Scotland under section 25, or

(b) ”.

Children (Secure Accommodation) Regulations 1991 (S.I. 1991/1505)

4 The Children (Secure Accommodation) Regulations 1991 (S.I. 1991/1505) are amended as follows.

5 In regulation 1—

(a) in the heading, for “and commencement” substitute “, commencement and extent;

(b) the existing text becomes paragraph (1);

(c) after that paragraph insert—

(2) This Regulation and Regulations 10 to 13 extend to England and Wales and Scotland.

(3) Except as provided by paragraph (2), these Regulations extend to England and Wales.”

6 In regulation 2(1) (interpretation), in the definition of “children’s home”, for the words from “means” to the end, substitute “means—

(a) a private children’s home, a community home or a voluntary home in England, or

(b) an establishment in Scotland (whether managed by a local authority, a voluntary organisation or any other person) which provides residential accommodation for children for the purposes of the Children’s Hearings (Scotland) Act 2011, the Children (Scotland) Act 1995 or the Social Work (Scotland) Act 1968”.

7 For regulation 3 substitute—

“3 Approval by Secretary of State of secure accommodation in a children’s home

(1) Accommodation in a children’s home shall not be used as secure accommodation unless —

(a) in the case of accommodation in England, it has been approved by the Secretary of State for that use;

(b) in the case of accommodation in Scotland, it is provided by a service which has been approved by the Scottish Ministers under paragraph 6(b) of Schedule 12 to the Public Services Reform (Scotland) Act 2010.

(2) Approval by the Secretary of State under paragraph (1) may be given subject to any terms and conditions that the Secretary of State thinks fit.”

8 In regulation 17 (records), in the words before paragraph (a), after “children’s home” insert “in England”.

Secure Accommodation (Scotland) Regulations 2013 (S.S.I. 2013 No. 205)

9 The Secure Accommodation (Scotland) Regulations 2013 (S.S.I. 2013 No. 205) are amended as follows.

10 In regulation 5 (maximum period in secure accommodation), after paragraph (2) insert—

(3) This regulation does not apply in relation to a child placed in secure accommodation in Scotland under section 25 of the Children Act 1989 (which allows accommodation in Scotland to be used for restricting the liberty of children looked after by English and Welsh local authorities).”

11 In regulation 15 (records to be kept by managers of secure accommodation in Scotland), after paragraph (2) insert—

(3) The managers must provide the Secretary of State or Welsh Ministers, on request, with copies of any records kept under this regulation that relate to a child placed in secure accommodation under section 25 of the Children Act 1989 (which allows local authorities in England or Wales to place children in secure accommodation in Scotland).”

Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013 No. 1465)

12 In Article 7 of the Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013 No. 1465) (compulsory supervision orders and interim compulsory supervision orders), after paragraph (2) insert—

(3) Where—

(a) a compulsory supervision order or interim compulsory supervision order contains a requirement of the type mentioned in section 83(2)(a) of the 2011 Act and a secure accommodation authorisation (as defined in section 85 of that Act),

(b) the place at which the child is required to reside in accordance with the order is a place in England or Wales, and

(c) by virtue of a decision to consent to the placement of the child in secure accommodation made under article 16, the child is to be placed in secure accommodation within that place,

the order is authority for the child to be placed and kept in secure accommodation within that place.”

Social Services and Well-being (Wales) Act 2014 (anaw 4)

13 In section 124(9) of the Social Services and Well-being (Wales) Act 2014 (anaw 4) (restrictions on arrangements for children to live outside England and Wales), after “does not apply” insert “—

(a) to a local authority placing a child in secure accommodation in Scotland under section 25 of the Children Act 1989, or

(b) ”.

Saving for existing powers

14 The amendments made by this Schedule to provisions of subordinate legislation do not affect the power to make further subordinate legislation amending or revoking the amended provisions.”.—(Edward Timpson.)

See the explanatory statement for NC1.

Brought up, read the First and Second time, and added to the Bill.

Clauses 58 to 61 ordered to stand part of the Bill.

Clause 62

Extent

Amendments made: 9, in clause 62, page 33, line 12, at end insert—

“(A1) Section (Placing children in secure accommodation elsewhere in Great Britain) and paragraphs 2, 4, 5 and 14 of Schedule (Placing children in secure accommodation elsewhere in Great Britain) extend to England and Wales and Scotland.”

This amendment would ensure that, where paragraphs of NS1 provide for legislation to extend to England and Wales and Scotland, the paragraphs themselves have the same extent.

Amendment 10, in clause 62, page 33, line 13, leave out subsection (1).

The subsection left out by this amendment is replaced by amendment 13.

Amendment 11, in clause 62, page 33, line 14, at beginning insert “Except as mentioned in subsection (A1),”.

This amendment is consequential on amendment 9.

Amendment 12, in clause 62, page 33, line 15, leave out “enactment” and insert “provision”.

This amendment is consequential on amendment 9.

Amendment 13, in clause 62, page 33, line 16, leave out subsection (3) and insert—

“( ) Subject to subsections (A1) and (2), Parts 1 and 2 extend to England and Wales only.

( ) This Part extends to England and Wales, Scotland and Northern Ireland.”.—(Edward Timpson.)

This would ensure that the final Part of the Bill extends throughout the United Kingdom, as well as making changes consequential on amendment 9.

Clause 62, as amended, ordered to stand part of the Bill.

Clause 63

Commencement

Amendments made: 14, in clause 63, page 33, line 19, leave out “This Part comes” and insert “The following come”.

This amendment and amendment 15 would provide for NC1 and NS1 (placing children in secure accommodation elsewhere in Great Britain) to come into force on the passing of the Bill.

Amendment 15, in clause 63, page 33, line 19, at end insert “—

(a) section (Placing children in secure accommodation elsewhere in Great Britain) and Schedule (Placing children in secure accommodation elsewhere in Great Britain);

(b) this Part.”.—(Edward Timpson.)

See the explanatory statement for amendment 14.

Clause 63, as amended, ordered to stand part of the Bill.

Clause 64

Short title