The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)
My Lords, before I turn to the amendments in the first group, I want to be clear, as many noble Lords have recognised, that the measures in Clause 10, together with those that we will come to later in Clauses 12 to 18, are part of an overarching, broad-ranging strategy to fix the market for placements for looked-after children.
The review conducted by my honourable friend Josh MacAlister, which several noble Lords have quite rightly referenced, and the report from the Competition and Markets Authority were explicit that the placement market is dysfunctional and that some private providers are making excessive profits from placements for our most vulnerable children. We are now taking concerted action to address this, including through measures in the Bill, but also through a wide range of non-legislative measures, to deliver a broader range of providers in the market so that local authorities have more options when finding the right place for children in their care. These must be the right homes in the right parts of the country, so that children do not have to move miles from their communities and support networks, as many noble Lords have referenced in this debate. These homes must be delivered at a sustainable cost to the taxpayer by providers no longer making excessive profits. A failure to address the dysfunction in the system has led to many of the issues that noble Lords are rightly identifying today, which they hope and expect us to respond to—not only, I suspect, in these clauses relating to regional care co-operatives but more broadly in the action that we are taking to fix that dysfunctional market.
Amendments 108 to 116 in the name of my noble friend Lady Longfield seek to amend the definition of local authorities’ strategic accommodation functions as defined by this clause to ensure that it meets the current and future needs of looked-after children. This and my noble friend’s contribution exactly get to the crux of the problems we are trying to solve here. She is correct, as I have already suggested, about the issues raised by the lack of sufficiency caused by the current placement market for children. Children being too far away from home; too big cost pressures; inappropriate placements: those are all things that this provision and the other elements of our strategy are aimed at addressing.
Amendment 119ZA from the noble Baroness, Lady Barran, sets out the principles that local authorities that have formed a regional care co-operative, following a direction from the Secretary of State, would have to adhere to when commissioning accommodation for looked-after children. She is right that the provisions in this clause relate to the direction powers for the Secretary of State in circumstances either where local authorities have refused to take part in regional arrangements or perhaps where regional arrangements have been set up and local authorities might not have managed to be part of any of those arrangements. I certainly think it is already the case that authorities are trying to bring themselves together into regional arrangements, precisely to be able to solve some of the issues that we have outlined.
The Government completely agree that there must be sufficient accommodation for all children who are looked after by their local authority and that in future this accommodation must meet their needs and provide appropriate support. It should allow them to live as close to home as possible, where that is in their interests. That is precisely the reason for trying to ensure that the market operates more effectively.
But it is also the case that there are existing legal requirements on local authorities to the effect of some of the understandable calls that have been made in these amendments and by other noble Lords. Local authorities already have a general statutory duty under Section 22G of the Children Act 1989 to take such steps, as far as is reasonably practicable, to ensure that there is sufficient accommodation within their area to meet the needs of looked-after children. They are also under a duty, via Sections 22 and 22C of the same Act, to provide accommodation that meets the needs of looked-after children by ensuring it is consistent with the child’s welfare and has due consideration to the child’s age and understanding, as well as their wishes and feelings. Finally, they have a statutory duty under Section 22C(8)(a) and (9) of the 1989 Act to ensure they provide accommodation that allows children to live near their home, unless it is inconsistent with the child’s welfare or not reasonably practicable. Those duties will all remain.
The problem is not that there is no legal recognition of these issues and the need for them to be taken into consideration in providing sufficient accommodation and placements for children. It is that the market has prevented local authorities being able to fulfil their statutory requirements. That is why regional care co-operatives, which in the legislation are called “regional co-operation arrangements”, will assist local authorities in meeting these duties, including by analysing what accommodation is needed for children across the region, publishing sufficiency strategies, recruiting and supporting foster parents and commissioning care places, as recommended by both the review conducted by Josh MacAlister and the report from the Competition and Markets Authority. They will support local authorities to carry out their strategic accommodation functions but, as I have suggested, these functions are not new and are already in law, including the duty to take steps, as reasonably practicable, to ensure sufficient accommodation for looked-after children. Any decision-making responsibility for where individual children are placed, however, will continue to rest with local authorities.
Amendment 116A in the name of the noble Baroness, Lady Barran, would prevent the Secretary of State adding to a local authority’s strategic accommodation functions for regional care co-operatives. I would like to reassure the noble Baroness of the safeguards in place regarding the power to add to the list of strategic accommodation functions to be exercised through regional care co-operatives. I slightly lost track of whether she was accusing the Government of currently having a Henry VIII power within the legislation— I will go back and check.
Baroness Barran (Con)
I was aware that my remarks may not have been clear that, in the department’s own memorandum, it describes this power as being akin to a Henry VIII power.
Baroness Smith of Malvern (Lab)
I will certainly take advice and look carefully at that, but I assure the Committee that the appropriate committee, the name of which escapes me, has of course looked in detail at the delegated provisions within the legislation and we will be responding to the committee and covering off any issues that might be of the sort of concern that the noble Baroness raises.
I hope to provide some further reassurance on that. First, the scope of regulations is limited to those local authority functions covered by specific sections of the Children Act 1989, namely Section 22A, the duty to accommodate looked-after children; Section 22C, how looked-after children should be accommodated by the local authority; and Section 22G, the duty to ensure sufficient accommodation for looked-after children.
Baroness Cash (Con)
I thank the Minister for giving way. I had actually looked at all the data currently collected, and I am grateful for the summary given to the Committee just now, but the amendments are directed at understanding where these children are going and how those specific placements work out, so that need can be assessed and planning for future need can be made. They are also directed specifically at the numbers of places and the children who go into those. I appreciate that burdening any party with more data collection is never attractive, but this is about children being taken from home and placed with strangers—which, even as an adult, does not bear thinking about—and waking in the morning and coming downstairs in a strange home.
I really implore the Government to give some consideration to the basic humanity of this. It has cross-party support in this House and has been supported by numerous charities and by the Labour MP Josh MacAlister’s independent review. There is a consensus. What I am not hearing—and perhaps I am missing it—is why we would not seek this data so that we can improve the outcomes for these children.
Baroness Smith of Malvern (Lab)
I am always willing to allow noble Lords to intervene, but I was actually coming to another paragraph in my speaking note, which I hope addresses the point that the noble Baroness makes. The Government are not suggesting that the current analysis or collection of data is sufficient. That is why we intend to improve our data on placements, as we set out in Keeping Children Safe, Helping Families Thrive. This will give local authorities better information, as she suggests, to assess need and the longer-term demand for placements and to support the delivery of the functions that we are asking regional care co-operatives to carry out under Clause 10. It will also be published on GOV.UK.
I do not know whether that assures the noble Baroness that the Government do have some humanity but I take her point, and that is why I was coming to the reassurance—I hope—that the Government do want to ensure that we have better data, including being able to address the issues around outcomes that she identified. That is why we will also be bringing forward a national data programme that will address the gap in national and regional data, particularly around the underlying costs of children’s social care placements, but we will continue to think about how we can improve the data that is available to us.
Baroness Butler-Sloss (CB)
My Lords, I apologise for not being present at the beginning of the discussion of these amendments. One issue that I was worried about many years ago, and I would be surprised if it did not happen still, is the fact that once a child moves from its local authority area to a local authority somewhere else, the sending local authority completely loses contact with anything that happens to the child—even though, as I understand it, it retains a certain responsibility. I wonder whether anything can be done to make sure that each local authority—that which the child comes from and that which the child goes to—is actually in touch and discussing what happens.
Baroness Smith of Malvern (Lab)
As usual, my friend the noble and learned Baroness makes an important point about the application of the law in this particular case. I think, as she suggests, that legal accountability and responsibility remains with the authority placing the child, but that does not mean that, in practical terms, there should not be engagement, and I would have thought that that would have been good practice. I also think that it is important that there is clarity about where the responsibility stays. That goes for the care co-operatives as well.
Lord Bellingham (Con)
My Lords, I am very grateful to the Minister for the extremely comprehensive response that she has given the Committee; it lasted a while but she covered a lot of ground on a lot of amendments.
I certainly agree with what she had to say about the wider strategy of trying to fix the current placement market and, above all, making sure that the right home is in the right place for children around the country. She certainly gave me some comfort on the role of the RCCs and the way in which they are going to be able to help local authorities and work with them and take pressure off them. I am grateful that she mentioned that there is going to be work in progress to look at the consequences of the abolition of NHS England.
On the role of the ICBs, I should have been aware of Section 10 of the Children Act 2004, because I was on that Bill committee many years ago and I remember the clauses about multi-agency safeguarding and the other bodies that are involved in this process.
I am very grateful to the Minister. I am sure that colleagues here will look very carefully at what she said. If need be, I for one will want to discuss this further with her and will look carefully in more detail at her reply, and maybe come back to this on Report. In the meantime, I thank her and beg leave to withdraw my amendment.
Baroness Spielman (Con)
My Lords, I would like to speak to Amendments 119 to 124 very briefly. We have touched on some very important points, and there is something that still needs to be crystallised. As others have said, these are some of the most troubled children in the system. They are also the ones whose care is probably the most expensive of all. Such specialised arrangements have to be made. We have touched on the tensions here between local authorities, the health service and the justice system. One of the reasons for the increase in the number of orders is the reduction in the number of justice secure beds and also tier 4 mental health beds. We have this terrible lacuna around children whom the health system deems to have, for example, untreatable personality disorders but who very clearly need to be looked after somewhere where both they and others can be kept safe and to have everything that we can do to improve their lives and to help make life work for them on a permanent basis in a healthy, humane way. This is an enormous challenge. I would very much like to hear the Minister explain how the health functions of government are also going to be tied into making the deprivation of liberty scheme work.
Baroness Smith of Malvern (Lab)
My Lords, as others have said during the course of this important debate, Clause 11 is about provision for some of the most vulnerable children in the country and the importance of ensuring that adequate support and necessary safeguards are available to them. The measures in Clause 11 brought forward by the Government seek to bring more children, who would otherwise be deprived of their liberty under the inherent jurisdiction of the High Court, into a statutory scheme where they will benefit from enhanced safeguards and protections. I will say more in response to specific amendments about those enhanced safeguards and protections.
The clause provides a statutory framework to authorise the deprivation of liberty of looked-after children in provision other than a secure children’s home where there are not enough places, and which cannot meet the needs of all this cohort. Noble Lords will be aware of the pressing need to ensure that these children are provided with sufficient suitable placements to meet their various needs, including in Scotland.
This brings me to government Amendments 125 and 128, which will allow local authorities and others in Scotland to seek authorisation in Scottish courts to deprive children of their liberty in relevant accommodation in England. As noble Lords will be aware, relevant accommodation will have the primary purpose of care and treatment and will also be capable of being used to deprive a child of his or her liberty if required in connection with the provision of care and treatment. We are also making a consequential change to amend the language from “restrict” to “deprive”, to ensure consistency with existing amendments to Section 25 of the Children Act 1989 provided by Clause 11. These amendments will ensure that Scottish local authorities can access all forms of accommodation to enable a child to be deprived of their liberty in a placement that best meets their needs.
Amendment 119A, tabled by the noble Baroness, Lady Barran, addresses important issues around how best to support and protect another vulnerable group of children by seeking to allow children who have an education, health and care plan and who are in residential schools to be deprived of liberty in those settings under this legislation. The primary purpose of a residential school is to educate the children living there. Each child’s EHCP will have specified requirements to meet the child’s educational needs. In contrast, Section 25 is a specific legal route for placing looked-after children in specific accommodation where there is a need to avoid absconding or injury to the child or another person, often due to complex trauma. Clause 11 will not require any child to move from a residential school that is meeting the child’s needs. Where deprivation of liberty is required for a child living in a residential school, mechanisms other than Section 25 can be considered. For older children, that might include an application to the Court of Protection.
Amendment 119B seeks to remove “injure” from the clause but, as the noble Baroness spells out, is probing what is meant by the terms within the criteria under Section 25 of the Children Act. I am grateful for the opportunity to clarify that “injure” in this context has a wide meaning, including physical, mental or emotional injury. The criterion for an order under Section 25 is long-standing and has been well tested by the courts. I confirm for the noble and learned Baroness, Lady Butler-Sloss, that Section 25 orders are issued by the family courts. I am confident, given the long-standing and well-tested procedures for Section 25, that it will continue to ensure that children can be deprived of their liberty to keep them safe where appropriate and necessary.
Amendment 120A seeks to ensure access to education for children in the new relevant accommodation outlined in Clause 11. I agree with the noble Baroness, Lady Barran, that access to education for our most vulnerable children is of the utmost importance to ensure that they can thrive and get on well in life. That is why there is substantial existing legislation in this regard, setting out the legal duties on local authorities to promote children’s educational attainment and include educational needs within care plans, as well as regulatory requirements for children’s homes to meet children’s educational needs. The intention behind “relevant accommodation”, which will be registered children’s homes, is to focus on ensuring that the child obtains the relevant treatment, which may involve depriving them of their liberty, but where they may also be able to have, for example, continued access to the community, including for education. It is also more likely to provide the closeness to the community and to their homes which several noble Lords have rightly said is an important right and need of children that must be continued.
Baroness Berridge (Con)
I thank the Minister. Can she simply confirm in the letter that the position may be that we are left with a residual group of children who will still need the inherent jurisdiction? It might be that the legislation just does not reach quite far enough at the moment.
Baroness Smith of Malvern (Lab)
I will clarify that in the letter.
On Amendment 131 tabled by the noble Baroness, Lady Bennett, on the important matter of the use of restraint on children in care and subject to deprivation of liberty orders, it is vital that children are safe and that restraint is used only where appropriate, including when they are moving between settings and services. We take these concerns very seriously. We will consider guidance on restraint in due course.
However, the question about children being handcuffed remains, and I will endeavour to get more detail about that and to come back to the noble Baroness. Providers, in conjunction with placing authorities, are under an obligation to use the minimum appropriate restriction to keep a child safe.
Baroness Bennett of Manor Castle (GP)
I may be a little too soon, but I wonder whether the Government are minded to ensure that there is, as my amendment would provide, some kind of reporting mechanism to keep track of things. There may be cases where that is necessary. Surely this is something there should be an annual report on so that we can see the direction of travel and whether there is a problem that needs to be tackled.
Baroness Smith of Malvern (Lab)
Noble Lords are very premature today. I was coming not quite to that but to something that I hope will be satisfactory in relation to that reporting mechanism.
Ofsted, as the independent regulator of children’s homes, manages incidents of restraint on a case-by-case basis under its inspection framework. The children’s homes regulations place a requirement on homes to record any incidents of restraint and on the registered person to inform Ofsted of any incident in relation to a child that they consider to be serious. We think that Ofsted inspectors are best placed to scrutinise individual incidents of restraint and the circumstances around them and to ensure that care providers are minimising its use. We are not clear that a yearly report to Parliament aggregating that data would add anything in this case, although it would create an additional burden and risk distraction from this important work. It would, in fact, probably be significantly less effective in safeguarding children and recording the incidents than the Ofsted approach currently being used.
Amendment 133 tabled by the noble Lord, Lord Farmer, seeks to promote family and other social relationships for children subject to deprivation of liberty orders by publishing local authority plans to support children in that regard. As mentioned in respect of earlier amendments tabled by the noble Baroness, Lady Tyler, I reiterate the Government’s agreement that, wherever possible, it is vital for a child’s welfare to have positive family and social relationships. Given that the Children Act 1989 and the supporting guidance already seek to ensure that family and other relationships for looked-after children are promoted while keeping children safe, and that this forms part of Ofsted’s inspections of local authorities, I am not sure it is appropriate or necessary to increase the burden on local authorities by mandating them to publish that information. I recognise the points made by the noble Lord, or it may have been somebody else speaking on his behalf, about the effectiveness of the lifelong links programme. I think we referenced that previously, and I can see the enormous benefit that can come from it.
Amendment 134C tabled by the noble Baroness, Lady Barran, seeks to ensure the affirmative procedure for regulations made under Section 25 of the Children Act 1989. I agree with the noble Baroness that it is important to ensure that regulations on this matter are subject to the correct scrutiny. She referred to the Delegated Powers and Regulatory Reform Committee’s report in which this was raised. We are grateful to the committee for its scrutiny. We are carefully considering its recommendations and will respond in due course.
Amendment 506B in the name of my noble friend Lord Watson seeks to delay commencement of Clause 11 until regulations are made to ensure that non-means-tested legal aid is available in relation to applications to deprive a child of their liberty under Section 25 of the Children Act 1989. I assure my noble friend that where an application is made to deprive a child of their liberty as a result of any measure the Bill brings forward, those children will be eligible for state-funded legal aid representation using the same criteria that currently apply to all children subject to orders under Section 25. This means that children will be able to access legal aid without needing to satisfy means testing.
I hope that noble Lords think I have provided nearly all the detail requested in these amendments. On that basis, I commend the government amendments to the Committee and hope that noble Lords feel able not to press theirs.
Baroness Butler-Sloss (CB)
This may be a rather silly question, but in my experience of the Atkinson secure accommodation unit, every child needs at least two carers. There are even children who need three. I wonder how a children’s residential care home will manage a child deprived of liberty. It will be an extreme case and the child will be unbelievably difficult to look after.
Baroness Smith of Malvern (Lab)
Nevertheless, we believe that it is possible. On the definition of relevant accommodation, we believe that it is possible to find those sorts of homes—sometimes supported by the use of technology to help maintain security for children, and certainly needing a certain level of staffing, as the noble and learned Baroness said—and that, for many children, it is preferable to live in that type of accommodation as opposed to the alternative, which has been to be deprived of their liberty under the inherent jurisdiction of the courts. Actually, some of that type of accommodation may well be more suitable for things such as maintaining contact, having education and being closer to the community.
Baroness Smith of Malvern
“(6A) In subsection (5A), for “restrict the child’s” substitute “deprive the child of their”.”Member’s explanatory statement
This amendment ensures consistency with the terminology in section 25 of the Children Act 1989 as amended by clause 11.
Baroness Smith of Malvern
“(9) In section 93 of the Children (Scotland) Act 1995 (interpretation)—(a) in the definition of “secure accommodation”, omit paragraph (b);(b) after that definition insert—““secure accommodation” , in relation to England, means secure accommodation within the meaning of section 25 of the Children Act 1989 or relevant accommodation within the meaning of that section;”.(10) In section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1) (interpretation)—(a) in the definition of “secure accommodation”, omit paragraph (b);(b) after that definition insert—““secure accommodation” , in relation to England, means secure accommodation within the meaning of section 25 of the Children Act 1989 or relevant accommodation within the meaning of that section,”.”Member’s explanatory statement
This amendment ensures that the clause 11 amendments to section 25 of the Children Act 1989, to allow local authorities in England and Wales to seek authorisation for the deprivation of liberty of children in accommodation provided for care and treatment in England, extend to local authorities in Scotland.