Children’s Wellbeing and Schools Bill

Debate between Baroness Butler-Sloss and Lord Watson of Invergowrie

Tuesday 17th June 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, what the noble Baroness, Lady Berridge, has just said is entirely sensible, and, if I may, I add my voice to it.

I did not know about this group of children. It seems wrong in principle that they should not be treated in exactly the same way as all other children in this particularly vulnerable group. As the noble Baroness, Lady Barran, pointed out, they are quite obviously the most vulnerable of all the children. I declare my interest as patron of the Atkinson unit in Exeter, which is secure accommodation.

What I am really standing up for on this is not only to understand and support in principle what the noble Baroness, Lady Barran, is saying but to express some concerns. I will just take, as an example, Amendment 120. If this child under the age of 13—and that is a very sad circumstance to have a child under 13—is under an order of the court, the Secretary of State would not be able to deal with it further than suggesting that the court order should be reversed. It is important that, when looking at these amendments, one has to bear in mind that it appears that deprivation of liberty may be able to be made without the introduction of the court. In so far as the court is concerned, I remind the Committee, as a former lawyer and judge, that neither the Home Office, the Department for Education nor any other government department can actually change the law of England other than through the parliamentary process. I have no doubt at all that the Minister knows that perfectly well, but it seems to me we have to be a little careful about the extent of the suggested use of these amendments.

I entirely understand what is intended, and it is entirely laudable, but we just need to be very careful as regards in what circumstances and whether there will be a court order. My recollection is that, in the past, Section 25 orders were also made in the family proceedings court. Not a word has been said about that now, and it may be that that does not happen any longer, but certainly there continue to be orders under the inherent jurisdiction, so I just make that warning to your Lordships.

[Lord Watson of Invergowrie (Lab)]

My Lords, noble Lords often say in this Chamber that it is a pleasure to follow whichever noble Lord or noble Baroness. I cannot say it is a pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, because, given the depth and detail of what she says and the experience she brings as a former judge—and she always speaks without a note—it is not a pleasure but humbling to be given the role of speaking in her wake, as it were. She is, as ever, extremely impressive and adds so much to our debates.

I want to speak to Amendment 506B in my name, on the use of accommodation for deprivation of liberty. When a child is in a secure setting, there is a robust framework for reviewing the suitability of arrangements for deprivation of liberty, including through the appointment of independent persons. Where deprivation of liberty orders are used in other accommodation arrangements, the same safeguards may simply not be there. So there need to be additional safeguards, including, as recommended by the Children’s Commissioner, a record in the looked-after child census, including the type of setting and the length of and reasons for restrictions placed. Also, wherever possible, independent advocacy should be provided for all children where a deprivation of liberty order is being considered or is in place.

Clause 11 provides a statutory framework for children to be deprived of their liberty in accommodation other than a secure children’s home through amending Section 25 of the Children Act 1989. The intention is for there to be parity with secure children’s homes in terms of access to legal aid. But the current position for parents and anyone with parental responsibility in these cases is that they are entitled only to means-tested legal aid. Such means tests are very restrictive; research by the Law Society has demonstrated that even those living in poverty can fail the financial eligibility test for legal aid.

Many parents are therefore left to navigate these complex legal proceedings on their own. The result of these court hearings is significant for children because it could lead to a child being put into a placement that is many miles away from their home environment and their local network of support—mirroring the arguments that we heard in the last group of amendments. Additionally, deprivation of liberty orders are increasingly being used to place children in unregistered accommodation —I will not go there again—due to the lack of secure children’s home places.

According to figures published by the Family Court Statistics Quarterly, there were 1,280 applications to the High Court for deprivation of liberty orders for children in 2024, of which 132 were for children 12 years of age and under. That total figure represents a 120% increase since 2020-21 figures, which themselves reflected a fourfold increase since 2017-18—again, according to the Law Society. By way of comparison, there were 261 applications for secure accommodation for children in 2024.

The noble Baroness, Lady Berridge, mentioned the Nuffield Foundation; the Nuffield Family Justice Observatory found that almost 90% of parents and carers were not legally represented at any hearings in applications made under the High Court’s inherent jurisdiction for deprivation of liberty orders. For an event of such importance to those families involved, that is surely a worryingly high figure and is just unacceptable.

It is surely a basic human right for no child to be deprived of their liberty, particularly into an unregistered placement, without their parents having access to legal advice and representation. There should always be access to non-means tested legal aid for parents and carers in these cases, and Amendment 506B would provide for that.