Children and Social Work Bill [HL]

Debate between Baroness Butler-Sloss and Baroness Howarth of Breckland

Wednesday 29th June 2016 Grand Committee

[Baroness Howarth of Breckland (CB)]

My Lords, I will speak briefly. I welcome the corporate parenting principles in the Bill, but I hope that we do not end up making them so complex that local authorities find them difficult to implement by adding things that should perhaps belong in other places such as the national offer or in other parts of the Bill. We should keep the principles simple. However, I agree absolutely with the noble Lord, Lord Warner, and in particular with his Amendment 29. The noble Baroness, Lady Howe, referred to it in terms of the other people who should be incorporated into taking responsibility for these young people. We will come to that, but I would rather we dealt with it in another part of the Bill rather than here.

I also agree with the noble Lord, Lord Warner—as one of the other people in this Room who has been a corporate parent—that the phrase “have regard to” would become a major discussion around the table of a local authority in difficulty that had to make savings. It will not be true in places such as Leeds or Kensington and Chelsea, which really have a grip on this.

I will also say that, as the Minister knows perfectly well, the Ofsted report published yesterday showed that many of our care systems are doing much better. Eight out of 10 children’s homes are now rated as being good or doing well. They can improve, so we are not at the bottom. Certainly a lot of local authorities need to improve, but we are on the way up. I hope that anything we do here and anything the Government do in future will encourage the direction of travel that we appear to be on at the moment. But it will certainly not be helped by the phrase, “have regard to”. “Must” is a much better word.

[Baroness Butler-Sloss (CB)]

My Lords, as the only person in this Room who will have applied the Children Act from the day it became law until I retired as a judge in 2005, perhaps I may say first that I agree strongly with what the noble Lords, Lord Warner and Lord Ramsbotham, said, and particularly with the noble Baroness, Lady Howarth, who said that we must not make corporate parenting—which I entirely support—too complicated. There is just a danger that we may be putting too much in. Everything that is set out in the amendments is right, but I am not absolutely certain whether it all has to be in primary legislation.

I should like to pick up the phrase “have regard to”. I can see the Minister being advised by his team that it is a phrase which is used in the Children Act, particularly in Section 1, which states that,

“the court shall have regard to”.

In my view, there is a great difference between the court having regard and others doing so. Judges in family cases are trained to know what is meant by the phrase, which means that they have to take the issues into account and then they have a checklist to decide what in fact they should actually be doing. But it is interesting to note that Section 17 of the Act does not say that a local authority should “have regard to”; it talks about the “general duty” of every local authority. It seems to me that there is a very real distinction between having regard if you are a judge or a magistrate trying cases and having regard if you are a social worker with very considerable financial constrictions.

I cannot understand, I have to say, why we need the phrase “have regard to” when those who drafted the Bill took the trouble to say “must”. The phrase “must act in the best interests” is a very simple way of looking at it. But the phrase,

“must, in carrying out functions … have regard to the need”,

is, as the noble Lord, Lord Warner, pointed out, a let-out.

So having started listening to this argument on the basis that “have regard” is a perfectly good phrase that I applied day in and day out for many years, I think that there is a real distinction between the judiciary and the magistracy having regard and the way in which local authorities should be told rather than being left to exercise their discretion, which is rather different.