Immigration Skills Charge Regulations 2017

Baroness Hamwee Excerpts

Tuesday 21st March 2017 Grand Committee

[Lord Lucas (Con)]

My Lords, I welcome these regulations. They are well targeted, have a good concept, good execution, with a sensible set of exemptions and remission for small businesses. I am disappointed that they do not extend to hospitality and construction, both areas where we have a substantial tendency for employers to bring in people from overseas rather than concentrate on training our own people. However, I entirely understand, given that most of that migration is from the EU, why we do not wish to complicate our Brexit negotiations by trying this on the continent just yet. However, when you talk to hospitality employers, they say, “We have to employ these overseas people because the Brits just don’t know how to treat customers”. I say let us bring back the British Airways charm school, which is what I grew up with. We can do this; we just need to train people properly. I do not think that we should accept the excuses of our hospitality industry. We should apply this principle to it to get it to bring our own people up to speed.

However, within the industries this measure is aimed at, it is an excellent idea. It is largely, I think, aimed in practice at IT and industries round that. I would be very grateful if the Minister or his colleagues would agree to meet me and representatives of the tech industry to discuss how to craft training which will meet the needs of employers who are hit by this levy so that the incentive which is provided by it can be directed at the provision of training which will ensure that the objectives of the levy are realised.

[Baroness Hamwee (LD)]

We are all being so polite. Perhaps we have learned from the charm school with which the noble Lord, Lord Lucas, grew up. We, of course, support investment in skills and training but it is appropriate to put these proposals in the context of the very tight brief which the MAC, as always, was given. It was required to advise on,

“significantly reducing the level of economic migration from outside the EU”,

taking into account the impact on the economy, including on productivity and competitiveness, and was asked to consider five issues, of which a skills levy was one. As the Minister said, at the time of the review the Government had already signalled an intent to introduce the charge. It is fair to acknowledge the MAC endorsement of the proposal. It said in its review:

“We consider that the imposition of an ISC will serve to incentivise employers to reduce their reliance on employing migrant workers and to invest in training and upskilling UK workers”.


But I also observe that, certainly in the health sector, that gives the term “incentivise” a rather new meaning. The Explanatory Memorandum refers to a collapse in training. Will the Minister tell the Committee whether the Government have analysed why that has been the case?

The letter from the Minister, Robert Halfon, to the Secondary Legislation Scrutiny Committee confirms that this is a tax. We know that the Treasury hates hypothecation, but given its rationale it seems to us that those who are paying it must be able to see how it is used and, more than that, be involved in decisions about the application of the funds, because they know what normally works best in their own sectors. There must be a lot of sector-specific experience which should be tapped, as well as this being in the interest of transparency.

The Institute of Directors recognised that “penalising employers” who need to look to the “global talent pool” is,

“not the answer to gaining more home-grown talent”.

To balance that, PwC said:

“The levy will not impact the way that companies recruit as they require the skills they require”.


It raised the spectre of, in the long term,

“parts of businesses moving overseas, if mounting costs become prohibitive and companies risk damaging their brands by providing substandard products or services”.

I recall that during the passage of the Bill an argument used against this, partly in the higher education sector, was that some industries will pay the charge but would not see any benefits because their sectors are not apprenticeship-appropriate. That applied in particular to the health sector. I will leave it to my noble friend Lady Walmsley to deal in detail with the health sector. I know that I will support everything that she says.

During the passage of the Bill we also expressed concern about the costs of the bureaucracy of this exercise. Given the investment that the sectors in question already make in training, there seemed to be a danger of a charge being levied, having administration costs deducted and the balance then returned to them. I have been assured that the deduction will be small because the Home Office visa system will be used, but there will be a deduction. We can add to that the unquantified cost of the loading on to the Home Office, which is overloaded. It probably feels that the light at the end of the tunnel is that ever-present oncoming train.

The MAC also said that,

“it is impossible to conclude, ex ante, whether the benefit arising to employers … will outweigh the costs imposed on Tier 2 sponsors”,

because the Government have not yet determined how the revenue will be reinvested. That is clearly a significant point. It is clear that the health sector has come to a conclusion, and it is not the positive conclusion that the Government want to see. Robert Halfon, in his letter to the Secondary Legislation Scrutiny Committee, said:

“The cost to the healthcare sector and to the NHS in particular has not been estimated”.


That is quite an astonishing statement.

One other area is that of intercompany transfers. The Minister has referred to the exemption in the regulations, but the exemption is limited to trainees. Why is it so limited? Is it simply because they are trainees? That fits in with the thrust of the proposals. I ask that question and make the implied point because we need to do all that we can to attract, retain and not deter international companies basing themselves in the UK. I do not think that I need to fill in the gaps between the lines there.

There are steps that the Government can take after taking through these regulations, particularly by way of exemptions and by working with different sectors, which would make them more palatable to those who find them unpalatable, and more effective, and might help to avoid unintended consequences, as these charges are clearly going to be significant for some sectors.

[Baroness Walmsley (LD)]

My Lords, as my noble friend Lady Hamwee said, I would like to say a few words about health and social care. Report after report shows the dire financial straits in which NHS employers find themselves, with 75% of hospitals already in deficit and A&E departments struggling to meet the four-hour target for attending to patients. There is a shortage of nurses, and retention is terrible. Doctors’ rosters are not filled, resulting in cancelled patient treatments, which puts a greater burden on existing staff, who are acting as the shock absorber for the system. GP practices cannot fill vacancies. Care homes providers are handing back local authority contracts because they cannot provide a decent service within the amount of fees that they are paid. The number of care beds is falling while demand is rising, and 1.2 million elderly and disabled people are not receiving the care that they need.

It is in this climate that the Government have decided to tax health and care employers for every worker from outside the EEA who is on a tier 2 visa. You could not make it up. On top of this, they choose to do it at a time when they have removed the nurse training bursary and have no idea of the effect that it will have on the number of nurses in training. It is no wonder that the BMA and the RCN have written to the Home Secretary, laying out the damaging effects of the charge on health and care. The Government may not have calculated how much it is going to cost them, but they have—it is £7.2 million per year, which will deter cash-strapped employers from filling rosters with essential staff, thereby putting patients at risk. I ask myself why the Government could not make those calculations. Perhaps it is because it is so politically embarrassing.

It is little wonder that the Secondary Legislation Scrutiny Committee had serious concerns about the measure, with particular regard to the fact that the memorandum laid with the instrument said nothing about the opposition to the measure voiced by those who were consulted. It was also provided with no information about the impact of the measure, particularly on health and care employers, who are the sector fourth-most affected by the charge. It is no wonder that it was not provided with that information since, in reply to its questions, as my noble friend has just said, Robert Halfon MP confessed that the cost of the charge to the NHS has not been estimated because it is classified as a tax. His letter also shows complete ignorance of the nature of the modern nursing workforce, saying:

“There is no direct impact on employers of care workers as they do not qualify for entry to the UK under the Tier 2 route. Tier 2 has been reserved for graduate occupations since 2011”.


Yes, nursing has been a graduate occupation for a similar length of time. Does the Minister think that care employers do not employ graduate nurses any longer?

The ISC was intended to deter employers recruiting from abroad, but health and care employers have no option, and they have no need for this. As the BMA letter says:

“Checks and balances are already in place to ensure posts are first offered to UK and EU nationals through the resident labour market test”.


Although we are going to introduce apprentice nurses later this year, doctors undergo long and rigorous training, and it is impossible to upskill UK citizens overnight.

Higher Education and Research Bill

Baroness Hamwee Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 25th January 2017 Lords Chamber

[Lord Judd (Lab)]

My Lords, I, too, am glad to have my name on the amendment. Appreciation and tribute should be offered to those universities which of their own initiative are doing what they can to meet the challenge in the current situation, but that is obviously not adequate.

In the long debates on this Bill, we have constantly returned to the argument about the quality and tradition of our universities. It is really rather sad to see universities with that quality and tradition caught up in such an oppressive and negative administrative policy.

I relate this to another amendment which we shall discuss quite soon, about security and terrorism. In the awful problems relating to security which we face, a key issue is the battle for the minds of the young. We want young people to have good education which helps them to form a more responsible and enlightened view about society and their role within it.

The potential students to whom we refer have been through the most dreadful experiences. It is important to keep reminding ourselves of that: they have been through harrowing experiences, and very seldom is it their fault. We have to look at the situation as they see it, and how they talk of it with their friends and contemporaries. They see it as oppressive and negative. It is not helping to build stability and peace in the world. If we take security and peace in the world seriously, we should want to do everything we can to meet this challenge and to enable potential students to have the advantage of education. I very much hope that the Minister will take on board the seriousness of this issue and try to meet it in some way in his response.

I sometimes worry already about the anecdotal evidence that I hear about how negative attitudes are beginning to build up across the world, and not just in the places from where those potential students come. I worry about how far the United Kingdom is really the sort of place in which they want to come and study, whether it really is the warm, welcoming society which it has traditionally been. There is too much evidence of a culture of “no”, of rejection, unless there is an exception. This amendment would help to meet that situation and I hope that the Minister will find an opportunity to say something positive in response.

[Baroness Hamwee (LD)]

My Lords, I should apologise to the Committee, as I did not speak at Second Reading, but I am very deliberately speaking from the Front Bench as a member of these Benches’ home affairs team to add our support to the amendment.

I want to speak about integration—I cannot do so as eloquently or forcefully as the right reverend Prelate. I remind the Committee that we are talking about people whose status here is legal. Integration is a two-way process. The Home Office uses much too often for my comfort the term “hostile environment” and does so very deliberately. In the context of the subject of this amendment, we should be talking about a supportive environment.

If one changes the perspective, many people in these categories can be seen as a resource for the UK, so this is not just an altruistic point. People who meet individual refugees are often startled at their high level of skills and education, and startled too at their determination to be educated. Of course that does not apply to every individual, but it is really quite notable. Noble Lords who attended a City of Sanctuary event recently were impressed by hearing a young woman’s experience in overcoming the hurdles which the amendment seeks to address to get to university. She did but, my goodness, what a waste of time along the way.

As well as it being the right thing for us to do as a society, it would be to our benefit to facilitate the education of those who seek sanctuary and who are likely to be here on a long-term basis. Many of them come from cultures which value education very highly, perhaps because it is harder to attain. It often seems to me more highly valued among them than by those in our indigenous community, who perhaps take it rather more for granted. We very much support the amendment.

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I continue to oppose the application of the duty to universities, because I believe that the concerns raised by the noble Baroness, Lady Deech, are better addressed through appropriate laws, not through the Prevent duty. I support the amendment, but I also support wider calls for an independent review of the Prevent duty being made by the Joint Committee on Human Rights and more recently by the Home Affairs Select Committee and David Anderson QC in his role as reviewer of terrorist legislation. There are concerns, and that would be an appropriate way to consider them, both in the context of universities and more widely.

[Baroness Hamwee]

My Lords, the noble Baroness, Lady Lister, left the JCHR at the moment I arrived on it. I wanted to refer to its more recent report of July last year, following an inquiry into counterextremism in preparation for the Bill which we expected but which has not emerged, perhaps because of the difficulty in defining “nonviolent extremism”. I follow her in my thinking as well. We took evidence from a number of people, and in our report quoted Professor Louise Richardson from Oxford, who said:

“My position on this is that any effort to infringe freedom of expression should be exposed, whether it comes from what I take to be the well-intentioned but misguided Prevent counterterrorism policy or from student unions that do not want to hear views that they find objectionable. A university has to be a place where the right to express objectionable views is protected”.


We went on to report that our evidence suggested that it is important for universities to ensure that debate is possible. Our conclusion and recommendation in this part of the work was that:

“Any proposed legislation will have to tread carefully in an area where there is already considerable uncertainty. For example, in the university context, it is arguable whether the expression of certain views constitutes putting forward new ideas in the form of controversial and unpopular opinions, or whether it amounts to vocal and active opposition to the UK’s fundamental values. The potentially conflicting duties on universities to promote free speech, whilst precluding the expression of extremist views, is likely to continue to cause confusion. We believe that free speech is precious, particularly in universities, and should not be undermined”.


I accept that the context is slightly different from the objective of this amendment, but the points are important. The Government, in their response, said that,

“universities have to balance their duty to promote freedom of speech with their other legal responsibilities including equalities law, health and safety responsibilities … We recognise that balancing these responsibilities is not always an easy job and that there are difficult decisions to be taken”.

That entirely misses the point about freedom of speech. The Prevent strategy is discredited in so many eyes. What is most important is that it has lost confidence. As the noble Baroness has said, I wish that the Government would accept the need for an independent review—not its own internal, unpublished review—called for by such a variety of very authoritative people who should and do understand the importance of such a review.

[Lord Judd]

My Lords, the suggestion of an independent review bears very serious consideration. A very difficult issue confronts us on the matter raised in this amendment. In the considerable amount of time that the House has spent in recent years on issues of security, one thing that has always concerned me deeply is the dividing point between essential action and what in fact begins to be counterproductive.

We have to approach the issue of how universities play their part in the security of the nation by considering the danger of fostering extremism and unacceptable views by heavy-handedness or the appearance, however far from reality it is, that universities are acting as agents of the security services. If that perception gains ground, it will certainly provide more potential recruits for extremism and unreasonableness in the student community. I do not dissent, with the evidence of anti-Semitism and hostility to Islamic people, from the view that urgent action by the state is necessary. Security is the responsibility of the state and universities must play their part within the law and vigorously ensure that they uphold it—of course, that is right—but when we start using words such as “prevent”, I think myself into the position of young students discussing issues and saying, “What the hell is going on? Is this university really a place where we can test ideas?”. We must have self-confidence in the middle of all this; we must not lose our self-confidence. The whole point of a university is that we encourage people to think and develop their minds. Therefore, it is a very good place to bring into the open the most appalling ideas that some people have, so that they can be dealt with in argument, and the rationality and decency of most people can prevail. They are places where what is advocated may be argued against effectively and where those arguments may be demonstrated. If there is any move towards preventing such opportunities to take head on in the mind the issues which threaten us, we will be in great danger of undermining our security still further.

I said in an earlier debate, and I mean it profoundly, that the battle for security in the world must be won in hearts and minds. It will not ultimately be won by controls; it will be won by winning the arguments. If the opportunity to win the argument is not there in universities or begins to be eroded, what the dickens are we doing in terms of undermining our own security?

Children and Families Bill

Baroness Hamwee Excerpts

Monday 9th December 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I start where my noble friend the Minister started by referring to the series of meetings that he and his colleagues arranged as well as the many papers—I cannot remember what term he used, but it was a lot of paper, which was welcome—that we received during the period starting before the end of Committee. I do not think that I have ever known so many meetings as he was able to arrange, but they have been extremely helpful. Because we are on the first day of another stage of the Bill, I need to declare interests as patron of the Intercountry Adoption Centre and of PAC and as a president of London Councils.

It will not be a surprise that I support and welcome this amendment. I thank the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth of Breckland, for their support in Committee, the officials who struggled with the technicalities of the not-very-easy current provisions and, most of all, the Minister, who dealt with the matter with care and, if I may say so, very effective pragmatism. I know that I pass on the thanks of the British Association for Adoption and Fostering and the Law Commission, both of which were involved, and of the individuals who have campaigned for this change. I have been able to show to the Bill team the very grateful and excited emails that I have had from the lady who has led the campaign. She and those with whom she is in touch can see that they will be able to answer questions about their own heritage, medical issues and indeed their very identity.

I understand the Government’s caution to ensure that the extent of the new rights is appropriate, and the Minister has given us an assurance as to children and grandchildren being the minimum within the prescribed relationships. I hope that he can assure the House that the consultation on this will take place very soon after Royal Assent and that the necessary regulations are expected to follow very speedily so that the anomaly that has been identified can be corrected with the minimum of delay. I thank him and his colleagues very much indeed.

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest at the beginning of the Report stage as a governor of Coram and as a patron of, among others, BAAF, PAC and Childhood First.

I start by saying that I think that this is a good Bill, though it needs some improvements. What is absolutely splendid is that in certain places the Minister has listened with great care and, like the noble Baroness, Lady Hamwee, I am extremely grateful to him, not only for a number of very useful meetings on this particular amendment and indeed others, but also for the outcome. I am really very grateful indeed and look forward to that being a source of relief to a number of families.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I said that this was a good Bill; none the less, there are certain aspects of it with which, respectfully, I do not agree.

This amendment relates to comments at the beginning of the pre-legislative scrutiny report by the Select Committee on Adoption Legislation, which I had the honour of chairing. It was the unanimous view of the members of that committee that, compared with the previous position, the Government had gone too far in the opposite direction. Section 1 of the Adoption and Children Act 2002 lists eight considerations applying to the exercise of powers. The previous Government had included subsection (5) as a separate subsection. It reads:

“In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background”.

Instead of being one of a number of considerations, that was out front. The result was that social workers, who were dealing with what is properly called the “ethnicity question” up front, were refusing to place children for adoption with parents who were not of the same colour, the same persuasion or whatever, and this was impeding the very natural and highly to be commended desire of this Government for adoption to move speedily.

The Government therefore decided to take Section 1(5) out of the Adoption and Children Act 2002. So far, so good, but now they have gone too far the other way because it does not appear anywhere. The nearest you get to it is Section 1(4)(d) of the Adoption and Children Act 2002, which reads,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”.

The Government’s view is that that covers the ethnicity point but I do not share that view. The evidence that the Select Committee received was that, whereas social workers paid too much attention to that consideration when it appeared as a separate subsection, there was now a very real danger that they would not pay any attention to it at all. Matters which are of considerable importance to a child—their religious persuasion, racial origin and cultural and linguistic background—have to be taken into account. They must not be permitted to frustrate a proper adoption if the circumstances of the adoption come outside one of those matters but they must be included in the checklist of the various points to which the social workers, the adoption agency—but usually the social workers—and the court must have regard, and removing them presents a problem.

I have had various meetings with the Minister and I even gave him a cup of tea this afternoon before we embarked on what is going to be a very long evening. However, I am afraid that I am not persuaded by his suggestion that there should be statutory guidance. Having it on the face of the legislation means that it has “an importance” but not “the importance”, whereas we all know that, although statutory guidance is important, it may not necessarily be read as carefully as it might be. However, it cannot be entirely ignored if it is in primary legislation. I share the Select Committee’s thought, which was to tuck it in neatly into subsection (4)(d), so you would read it as,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”.

This would then include,

“religious persuasion, racial origin and cultural and linguistic background.”

It would not be too prominent, but it would be there. For those reasons I wish to pursue this amendment, and I beg to move.

[Baroness Hamwee]

My Lords, I have the other amendment in this group. Like the other members of the Select Committee, I agreed that certain characteristics of a child for whom adoption was sought should not be highlighted as if they overrode everything else. Like the other members, as the noble and learned Baroness has said, I was concerned that the wrong message might be taken from new legislation. In taking out a provision for due consideration—because that is all it is, not an overriding consideration—to be given to the child’s,

“religious persuasion, racial origin and cultural and linguistic background”,

Parliament would be saying that no consideration should be given. Like the noble and learned Baroness, I fear that guidance would not be enough in that situation.

I do not think we said this in Select Committee, but I am fearful about this. England would not be in the same situation as Wales. Wales will be keeping this wording. The fact that adoption is a devolved matter does not answer the concerns that I have. It would be seen as a very significant distinction. This swinging political pendulum has got to end up in the middle. As the noble and learned Baroness has said, it is not an overriding issue, nor something to be entirely discounted. In Committee I said there had been oversensitivity to what some parts of the media regard as political correctness. I know that the Minister’s concern is that minority-ethnic children are being short-changed. Sadly, the cohort that is being short-changed is the many children from all sorts of backgrounds who are waiting for adoption. The problem is the imbalance between their numbers and the numbers of prospective adopters. To adopt, one needs to be sensitive—to be understanding of the importance of religion, of racial origin, of cultural and linguistic background. It is not a matter of “being the same as”. People who are the same may not understand, and may not be sensitive enough. But that sensitivity, that openness, addressing issues which may arise—that is the matching which is important, not the direct same characteristics.

As the Government were not been persuaded in Committee, a different approach might appeal. My amendments would take out the references to age and sex so that the court and the agency should have regard to the child’s background and characteristics, because those cover everything. The Minister has said that background and characteristics must include ethnicity. He said that is a matter of plain English. Age and sex are also characteristics, so I hope that my plain English amendment might be helpful.

[Baroness Perry of Southwark (Con)]

My Lords, pendulums do swing; it is very difficult to find a middle way. We are all agreed that it was wrong that for a period of time there was too much emphasis given to a child’s racial and religious background, as the noble and learned Baroness has said. That has resulted in appalling waiting times for children of some ethnic-minority backgrounds, who wait to be adopted for three or four times longer than white children—their contemporaries—do. That is not acceptable in our society. But we are in danger of swinging the pendulum a little bit back in the wrong direction by trying to put in the words of,

“religious persuasion, racial origin and cultural and linguistic background”.

I am of the view, which I understand is also the Minister’s view, that any sensible person trying to interpret the “background” would include racial, religious, cultural and linguistic origins. There is no way that you can look at someone’s background without taking those into account, otherwise the word “background” is meaningless. What else could it possibly mean?

I turn to the amendment of the noble Baroness, Lady Hamwee. I have a lot of sympathy with her wishing to take out the racial, cultural and linguistic elements as put forward by the noble and learned Baroness, Lady Butler-Sloss, but I wonder whether we have not taken too much out there. It is a question of the pendulum swinging in all directions. Given all the various views that there are here, it seems to me that we all want the same thing: we want children of ethnic-minority backgrounds to be able to be adopted as quickly as their contemporaries; and we also want all their background to be taken fully into account. Given the efforts we are making to get the pendulum to hang in the middle, I think the Government have got it just about right.

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[Baroness Hamwee]

My Lords, I have Amendments 4A, 4B, 4C, 4D and 6A in this group. They have already been trailed. When I first became aware of a proposal for the Secretary of State to issue directions about local authority adoption functions, I shared the alarm which was expressed, because I am pretty unreconstructed when it comes to local authority powers. On the other hand, having heard some of the issues which seem to lie behind problems with recruiting adopters, during the debates that took place during the work of the Select Committee, at one point I wondered whether adoption services should be nationalised. My pendulum has swung back to the middle.

I am reassured from what the Minister has said that the clause is not about failure or the underperformance by individual local authorities; it comes about because of concerns about the system, and systemic underlying problems. The amendments in my name and those of the noble Baroness, Lady Eaton, the noble Viscount, Lord Eccles—also members of the Select Committee—and my noble friend Lord Storey, flow from that. They are aimed at building on and improving what we are presented with in the Bill. It has been voiced again today. What has very much exercised noble Lords is ensuring that Parliament is not sidelined. I realise that a direction under paragraph (c) would be very different from directions under paragraphs (a) and (b) of new subsection (3), and I will come back to that in a moment.

Our amendments would turn directions relating to all local authorities into an order requiring the agreement of both Houses through the affirmative procedure. That would mean the Minister explaining the position, and both Houses debating it with an order not to be made before March 2015. The parliamentary timetable suggests to me that it is very unlikely an order would be made two months before a general election. So I was glad to see the Government Amendment 6 and even more pleased when the Minister told me that he wanted to add his name to our amendments but was too late for the print of the Marshalled List.

The Select Committee said that local authorities should have the time,

“to develop viable and achievable alternative proposals.”

We see that they are already doing so. We heard in the Committee of successful structures in the “tri-borough arrangement” as it is called in London—the three boroughs—and with three local authorities in the north-west. I understand that there are now probably five groupings involving 12 local authorities, which return their data together and are coming together in new structures.

The noble Baroness talks about the levers for change, whether what we may have will be enough, and whether it needs a heavy hand. I do not think that this is proposing a heavy hand. But if an order is proposed by the Secretary of State, as I see it—and I hope that the Minister can confirm this—it would not be a lid, perhaps here a portcullis, coming down. It would be a point in a sequence development of work, a transitional point which could be, and I hope if necessary would be, tailored as to which of the functions in new subsection (2) was brought into play. It would not be necessary to make an order dealing with all the functions in new subsection (2). So it is not the nuclear option, which I at first understood it potentially to be, or as it has been described.

A direction under new subsection (3)(b)—I confess that I had not initially appreciated how this might differ from an order under a statutory instrument—would allow for a lot more continuing work, after as well as before a direction with the local authorities concerned, which is a much more flexible way of working. It has been described to me as a quality improvement measure, with the possibility of collaborative development of the detail of the direction before it is given. Thinking about how that has worked on other subject areas within child protection and children services work, I can see that would work well. That leaves me unable to support Amendment 4.

The Government have already given commitment to giving notice to a local authority before using the powers in new subsections (3)(a) and (3)(b). So there would be an opportunity for that way of—I am sorry, I hate the word—iterative working, a development and refinement process. The steps which have already been taken since this debate started earlier in the year, or at the end of last year, when the Government made their announcement, have been constructive and productive, with the adoption form grant, the adoption register, the adoption leadership board and the equalisation of fees between local authorities and voluntary agencies. I mention voluntary agencies because it will be essential to work with the voluntary sector. Capacity and culture issues are both important. They are not going to change overnight. But the clause, as it would be amended by our amendments, allows more than adequately for this.

I hope that the directions in new paragraphs (b) and (c) will never be used, because it will not be necessary. I hope, too, that the Minister can confirm that over-enthusiasm, as the noble and learned Baroness has called it, would not mean that the paragraph (b) direction would be applied to all local authorities. That seems to me to be something that would be very open to challenge, given the rest of the structure of the clause.

I see why the Government feel that they need to have reserved powers, operated as I described, and that means that I cannot support Amendment 6. I hope that the House will feel that Amendments 4A to 4D and 6A are the way forward. I am comfortable with the logic of this, and I am usually over-logical about things. It is not heavy handed. It might almost be delicate—I will not go quite as far as to claim that—but it is a way forward.

[Lord Storey]

My Lords, I cannot keep using the expression that I am a new person to your Lordships’ House, but I am still on a big learning curve, and I like to put into simple terms some of the language that is used.

When I saw this clause, I remembered that something like 84% of adoptions last year were carried out by local authorities and that, as we have heard, the majority of them do a fantastic job. That is recognised by the voluntary sector and, equally, the local authorities realise how important the voluntary sector is. When the Bill first came to your Lordships’ House, the voluntary sector, quite rightly, said, “Look, we could not cope if you took it all away from local authorities. We would not be able to do that”.

At the time, it seemed right that the Government pointed to the fact that some local authorities had an appalling track record. As I have said, it is a very small number, but some had an appalling track record. Indeed, the Local Government Association would be the first to recognise that. So it seemed absolutely crucial that the Secretary of State should have the power, if local authorities were underperforming and were not prepared to work together and co-operate, to take that responsibility away from them. I see the logic and the importance of that because, at the end of the day, we are talking about the children. However, I did not see the logic of having the power to take the responsibility away from every local authority—that seemed plain daft to me—given the expertise and commitment that local authorities have and the amount of work that they do. I was therefore delighted when the Minister tabled an amendment which ensured that nothing could happen before March 2015. But that still means, unless I have misunderstood it, that the Secretary of State could say in March 2015—although, as my noble friend Lady Hamwee said, it would be two months off a general election—“We are going to do this, and that is what we are doing”. That would not be in the best interests of adoption and children.

If in the mean time the Government work with local authorities and the voluntary sector and different structures come together with different ways of operating—and if it is decided that tri or quad groups working together is the structure that we want—that is great. Whatever structure is arrived at, the Secretary of State should come to Parliament and both Houses should be able to say yes to it. I was not used to the phrase “affirmative procedure” in the amendment. If the Minister feels able to support Amendments 4A to 4C, as his comments suggest, that would be a result with which we could all be happy.

I do not share the concern that the Secretary of State might use Amendment 4B to take away the responsibility from boroughs and metropolitan bodies. That would not happen in the timescale because, as we have heard, 84% of authorities carry out adoption. However, if some local authorities are letting down children or the adoption service, in extreme cases the Secretary of State would have that power. If these clauses and amendments are accepted, it will mean that local authorities have come to the table and discussed these matters even more rapidly with the voluntary sector. I welcome the work that the Minister has done in bringing those people together.

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Moved by

[Baroness Hamwee]

4A: Clause 3, page 2, line 33, after “requiring” insert “one or more named”

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Moved by

[Baroness Hamwee]

4D: Clause 3, page 2, line 43, leave out from beginning to end of line 2 on page 3

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Moved by

[Baroness Hamwee]

6A: Clause 3, page 3, line 2, at end insert—
“(2) In section 140(3) of that Act (statutory instruments containing subordinate legislation that are subject to the affirmative procedure), before paragraph (a) insert—
“(za) under section 3A(1A),”
(3) The Secretary of State may not make an order under subsection (1A) of section 3A of the Adoption and Children Act 2002 (as inserted by subsection (1)) before 1 March 2015.”

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[Lord Warner (Lab)]

My Lords, I support my noble friend’s Amendment 9, which puts contact between siblings in the Bill. I apologise to the House that I was unable to take part in this Bill’s proceedings in Committee because I was engaged on the Care Bill. However, I was on the Select Committee on Adoption Legislation and I echo the points made by the chairman of that committee, the noble and learned Baroness, Lady Butler-Sloss.

On the basis of my six years as a director of social services, I have a general point about why the Minister should concede on Amendment 9. While I was director, the Children Act 1989 was passed. That was a classic example of Parliament saying in a Bill that decisions about children should be taken on the basis of the best interests of the child. In the overwhelming majority of cases where siblings are separated, the best interests of the child are to maintain that contact. Sibling contact is often a private child’s world, which is not always well observed by adults, whether they are social workers or other adults involved in that child’s life. Maintaining that contact is overwhelmingly important to children. My noble friend has shown that the option of putting it in guidance and relying on best practice has had a good run for its money and it has not worked. We should return to some of the ideas in the Children Act 1989 and put in the Bill the obligation to help maintain contacts between siblings when they are separated. These contacts are in the best interests of the children and very important to them. It costs very little to put that in the Bill.

[Baroness Hamwee]

I support Amendments 9 and 10. When the noble and learned Baroness was talking, I remembered that when she was meeting children—she shared with the House some of their moving comments—I was in the next room meeting the carers, mostly social workers. When we talked about contact generally, not just with siblings, several of them said that the problem lay in adopters not wanting to know, preferring to see their children as part of the new family and wanting to leave the past behind. Therefore I take very seriously the point that she and other noble Lords have made about the importance of having this in the legislation. Guidance has not been enough and I do not see that it will be enough.

In support of Amendment 10, in Committee the noble Baroness, Lady Young, gave such an important explanation of the need to know one’s identity that, without wanting to embarrass her, I feel it should be framed. It said a lot about the specific issue about which I was concerned, about descendants of adopted people and, as she has just mentioned, the need of older adults to know about their heritage and background. What she has said seems in line with adoption practice and with Amendment 1, which we have agreed. It is an important way to move practice forward though statute.

[Baroness Northover (LD)]

My Lords, I thank noble Lords for putting down these amendments and for their commitment in this area. We focus here on three areas that greatly impact on the lives of children in care and care leavers. I thank the noble Earl, Lord Listowel, for his thanks to my noble and honourable colleagues. Noble Lords will note that my honourable friend the Minister for Children and Families is at the Bar of the House. We appreciate his presence.

I start with the important issue of children who return home from care, addressed by the amendment of the noble Earl. I thank him for his acknowledgement that support for those returning home is a key priority for the Government. We agree that much greater attention is required to ensure that both the statutory framework and local practice are improved significantly. We are working closely with an expert group, including organisations such as the NSPCC, which are making an invaluable contribution to this work. I hope noble Lords will be reassured that we are strengthening the statutory framework for voluntarily accommodated children since we believe this is particularly weak. We are exploring whether the current statutory framework needs to be strengthened for other children who return home, including those who were previously on a care order and 16 and 17 year-old care leavers. We are also working to improve practice for all children who return home, whatever their legal status while they are in care or when they return home.

The noble Earl raised the issue of children on interim care orders. We are aware that the Alliance for Children in Care and Care Leavers has raised concerns about children who return home following an interim care order, and whether the new proposals to strengthen the statutory framework will apply to this group. We shall continue to work with the expert group and others to explore how to ensure that we improve the statutory framework where necessary for all children regardless of legal status. I hope he finds that reassuring.

The noble Earl and other noble Lords asked about personal budgets. The current statutory framework provides sufficient flexibility for local authorities to provide personal budgets if they think this is the best way to meet a family’s needs. We do not think that it would be appropriate to assume that this will be necessary in all circumstances. Therefore, we believe that decisions about financial support and how this is provided should be taken on a case-by-case basis. I hope that he is reassured that it is possible to give that kind of support.

I can assure the noble Earl that we shall continue to work with the NSPCC and other voluntary sector organisations through our expert working group as we develop and implement our programme of work. We should be delighted to meet him to discuss matters further. We know there is a long way to go, but we are committed to ensuring that all children receive the support they need to return home to their families where this is the right way to secure permanence for them. I hope that in due course the noble Earl will be content to withdraw his amendment.

Amendment 9 on sibling contact was introduced by the noble Baroness, Lady Jones, and is supported by other noble Lords. We are in complete agreement that contact between siblings is of great importance to children in care. I hear what my noble friend Lady Hamwee and others have said on this. We take this very seriously. We believe that the concerns that noble Lords have raised are an issue of practice and are best tackled through strengthening statutory guidance, improving local authority practice and monitoring impact through Ofsted reports. I noted the comments made by the noble Baroness, Lady Hughes, when we were discussing this in the round table about the difficulty that existed in taking this forward before.

We are therefore making our expectations of local authorities clearer in statutory guidance. Noble Lords will be well aware that statutory guidance is not merely advice; local authorities must comply with statutory guidance unless there are exceptional reasons which justify a departure. The noble Baroness, Lady Jones, asked how we will ensure that this makes a difference, which is the crux, and which was highlighted by her noble friend in earlier discussions. We will need to monitor the impact of our revised guidance and our planned programme of work in the short and long term. The noble Baroness is right about that. It must make a difference. The revised Ofsted inspection framework includes specific wording on sibling contact and will be an area that it will look at in its inspections of children’s services. We will use its reports to highlight areas of good practice and address areas of poor practice where the need arises.

Influenced by our discussions in Committee, we have produced a revised draft of our statutory guidance which emphasises the key points raised by noble Lords. We very much appreciate the experience that they fed in in Committee. These changes include a specific requirement for the care plan to set out arrangements for the promotion and maintenance of contact with siblings and for consideration to be given to whether staying-put arrangements may be beneficial to maintaining sibling contact when an older child leaves care. I thank the noble Baroness, Lady Jones, for her thanks to us for incorporating these points.

We appreciate the comments from our discussion at the round table last week. They were very helpful. We appreciate that there is further work to do. We are very keen to involve noble Lords who are interested in taking this work forward in coming weeks to ensure that the guidance is as clear and robust as it can be. Clearly the noble Baroness, Lady Hughes, with her formidable experience as a former Children’s Minister, which she manifested at our discussions the other day, would be very important to that.

We want to make sure that the changes we make to the statutory guidance as a whole encompass all the necessary changes and that we have had sufficient time to consult sector partners, consider our wording properly and check its consistency with our other guidance. Taking this into account, we will progress with publishing this guidance as soon as possible in the new year.

When the guidance is published, we will work through independent reviewing officers and others to improve local practice. The revised Ofsted inspection framework includes specific wording on sibling contact, so we will monitor Ofsted reports on the impact that we are having.

I hope that noble Lords will recognise that we share their very real concerns and will work with us to take forward practice most effectively and that therefore the noble Earl will be willing to withdraw his amendment in due course.

Amendment 10 was tabled by the noble Baroness, Lady Young. It is on access to records for care leavers. Having considered the issue further following the debate in Committee, we recognise that we need to improve the statutory guidance in this area. We thank the noble Baroness for her involvement in this. She gave her time very generously in facilitating meetings with officials and voluntary organisations. They have been very helpful for the department as we have drafted our new guidance. We would like to thank the voluntary organisations—the Care Leavers’ Association, BAAF and Barnardo’s—which took part in the meetings, for sharing their knowledge and expertise in this area. We especially thank the noble Baroness, Lady Young, for making sure that all these groups were brought together so that we could hear the case that they needed to make.

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[Baroness Hamwee]

My Lords, I have to say to my noble friend that in 2012 I was not entirely persuaded by a similar amendment. I made supportive comments but wondered whether it was right to be pushing it at that stage—indeed, the noble Lord did not do so. I have changed my mind. I realised that time moves on and the fact that I am not going to repeat a number of points that have been made does not mean that I do not agree with them; I agree with them very much indeed.

It is difficult enough for trafficked adults—or, indeed, other adults who come up against the state—to deal with multiple agencies. For a traumatised child it is unbelievably more difficult. The distrust of state authorities has been mentioned and it seems that retrafficking happens because very often the trafficked child knows only his or her traffickers. They have been taught to trust the traffickers, who have said, “If there is a problem, here is the phone number. You contact us”. Of course that leads to the child leaving whatever care they are in, going back to the traffickers and being retrafficked.

Consistency and constancy have been mentioned. I want to talk about authority, whereby a guardian has authority not just to hear but to speak for the child—to contribute to the discussions and to have to be listened to by the others who are taking part in discussions and moving towards decisions. That legal recognition is particularly important, for instance, in dealing with immigration officers who are handling a child’s asylum case, in the national referral mechanism, and in instructing a solicitor. I say that from my experience; I have not dealt with anyone who has been trafficked but as a solicitor taking instructions you have to hear the instructions from the person who is entitled to give them. I have been in this situation with clients in many different fields where I am told, “That’s what so-and-so wants”. I need to know it from that person. You cannot assume it unless the person with clear authority gives the instruction. So the statutory power, the statutory authority, and the legal status are very significant.

Finally, I want to make a rather hard-headed point. You have to support victims and survivors of this sort of situation to enable them to be good witnesses when giving evidence. Unless we can achieve that, it will be that much harder to get convictions. My hard-headed point is that it is in the interests of attacking this despicable trade that I also support this amendment.

[Baroness Northover]

My Lords, this debate has made very clear the commitment across the House to improving the support received by trafficked children. My noble friend Lord McColl has made a very powerful case once again. We recognise that not enough has been done and that we must do more. I pay tribute to my noble friend Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and others for their determination to ensure that trafficked children, who are so very vulnerable, are properly protected. Noble Lords have made their concern extremely clear. We agree that these children are indeed among the most vulnerable and it is clear from what noble Lords and others have said that they are not being supported as they should be, so how is this best achieved?

We remain concerned that the introduction of guardians for trafficked children, alongside those persons who should already be working in the interests of the child, is not the most effective way to tackle the local problems that are clearly manifest here. Where local systems are not working as they should be to support the best interests of trafficked children, we need to address the causes of those problems. Others with extensive experience of the needs of trafficked children agree. Children and Families Across Borders, an organisation with considerable expertise in this area, has told us that introducing guardians would not improve the inadequate service that some trafficked children receive. Instead, they believe that a clear commitment to, and strong focus on, professional development by local government employers and others is required. This would help to improve practice and ensure that social workers understand the particular needs faced by trafficked children in their care. It is not clear that appointing another individual to speak for a looked-after child or to help them navigate the care system is the answer. Central to the role of a social worker is ensuring that the child’s best interests are protected. If that is not happening then that failure should be addressed. Introducing guardians could actually result in making things worse, with other professionals thinking they do not need to concern themselves as much about a trafficked child because their guardian is looking after them.

I note that my noble friend Lord McColl mentioned the variability of support and the best practice that can be seen among some social workers. He pointed to other cases of very poor practice and we fully agree that these must be tackled. We recognise that local authority performance with regard to trafficked children is clearly inconsistent. To address this inconsistency, we have proposed new regulations so that, when a trafficked child comes into the care system, the crucial information that they have been trafficked must be recorded on care plans. Under these new regulations, local authorities would be required, in planning and reviewing care for a trafficked child, to consider the specific and complex needs that may result from the experience of having been trafficked. This requirement would also extend to pathway planning for a trafficked child when they cease to be looked after. Social workers should support trafficked children to access mainstream and specialist services and this should include accompanying them to meetings with other professionals, as my noble friend Lord McColl highlighted. We will make this clear in the proposed new statutory guidance. To underpin the proposed new regulations regarding trafficked children, we have, as I say, drafted new statutory guidance. This sets out our expectations of how local authorities should go about providing the required support and we would welcome noble Lords’ views on how to make this draft guidance stronger. As noble Lords will be well aware, statutory guidance is of course not merely advice that local authorities can choose to ignore as they please. They must comply with statutory guidance unless there are exceptional reasons that justify a departure.

When they first enter care, trafficked children are particularly vulnerable, as noble Lords have made clear. They might not initially recognise that they are victims of a crime, or might believe that their best interests lie with their traffickers. The first hours and days are crucial in protecting a trafficked child from going missing. The new statutory guidance describes some of the steps that local authorities should take to protect against this risk, such as temporarily removing their phones to ensure that they are not in contact with those who can do them harm, providing 24-hour supervision, or employing previously trafficked children to assure the victim that they are safest in local authority care. The guidance provides a clear definition of a trafficked child and describes steps that should be taken when a child is identified as having been trafficked. This vital role is one that local authorities, with partners including the Home Office and police, fulfil—or should fulfil—as part of their child protection duties.

The noble and learned Baroness, Lady Butler-Sloss, talked about missing children. Some of the things that I have just said are intended to try to stop those children going missing. However, we have also put specific advice in our revised guidance on trafficked children, including how to prevent them going missing and how to support them when they are found.

Children who have been trafficked into this country from overseas may require specialist support in dealing with immigration questions or proceedings, as noble Lords have made plain. The amendment says that guardians will assist the child to access legal representation, appointing and instructing a solicitor where necessary, and my noble friend Lady Hamwee picked up the issue of legal representation. However, independent reviewing officers should already ensure that any child in their care has access to the appropriate legal support. In our new statutory guidance, we will now go further and require that such support should be provided by a suitably qualified solicitor or immigration adviser. Any immigration advice or legal support would be in addition to the child’s right, as a looked-after child, to independent advocacy.

Part of making children feel safe when they have been trafficked from overseas is ensuring that they understand their situation and the support provided to them. Our new statutory guidance will require that, where interpreters are required, they should be trained to understand the particular risks faced by trafficked children. Helping children to overcome cultural or language barriers so that they can express their wishes and feelings is a role that is already carried out by independent advocates. The new statutory guidance notes the importance of commissioning specialist advocacy services to provide this support.

The noble Baroness, Lady Lister, brought up the discussion that we had in Committee about Scotland. I was very interested in the fact that Scotland has guardians, and that is why I asked how it had worked out. She probably knows that the Scottish guardianship system is much smaller than would be required in England because it covers just 80 unaccompanied asylum-seeking children. Scottish guardians essentially fulfil the role played by independent advocates in the English system but with specialist immigration skills. Our proposed statutory guidance requires that, where a trafficked child requires specialist immigration advice, it should, as I said, be provided by a solicitor or adviser with the relevant competences.

I thank the JCHR for its letter, to which I shall be responding, and for its engagement in this matter. It highlighted several aspects of the Scottish model for consideration in England, as the noble Baroness noted, including provision of support in relation to the asylum and immigration process, support services and future planning, helping children to develop wider social networks, and ensuring that children’s views are heard in all proceedings that affect them. These are, indeed, very important, and that is why each of them is addressed in our new guidance. It is also why, where local practice is good, those aspects are already provided through the existing care system without recourse to the additional role of guardian for trafficked children. Of course, we take very seriously the letter that the JCHR has written and, as I said, I shall be writing in response.

There was quite an emphasis in Committee and, to some extent, in the discussions this evening on stability of care. We agree that these children need stability and continuity. The new statutory guidance would require local authorities to prioritise trafficked children so as to provide the greatest likelihood of their building a sustained relationship with their social worker. These are the most vulnerable children and they are precisely those for whom social workers must do most in providing understanding and support.

I have described here only a portion of our proposed new guidance, which covers a range of issues to ensure that trafficked children receive the right care and support. We would welcome suggestions from noble Lords on whether the guidance should include other issues. It is hugely important that we get the support for these children right, and we very much look forward to continuing discussions with noble Lords about how best to do that. We recently sent both the draft regulations and the guidance to noble Lords and they are available on our website. In particular, we would like to discuss with my noble friend Lord McColl, and with any other noble Lord who might wish to join in, the opportunities offered by the regulations. I am delighted that we have in the diary a meeting with my noble friend Lord McColl later this week. Our discussions are clearly very important for this group of children.

When officials shared the drafts of the guidance with representatives of the Children’s Society, the Refugee Council, and Children and Families Across Borders, they all found much to welcome in the guidance. I hope that noble Lords will find the same when they read the drafts and that they provide a sound basis for further discussion when we meet shortly. I therefore hope that my noble friend will be willing to withdraw his amendment.

National Curriculum: Violence against Women

Baroness Hamwee Excerpts

Monday 28th October 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, does the Minister agree that behaviour and attitudes tend to get repeated down the generations? This includes the repetition of violence and, among men and women, the acceptance of violence. Therefore, does he think it is important to say that violence is wrong and to give victims the confidence to speak up and say that it is wrong and that they will not put up with it?

[Lord Nash]

My Lords, I entirely agree with my noble friend’s point. I think she is particularly referring to domestic violence, where we have a lot of work under way, but there are a number of cycles that we need to break through work in schools: worklessness is one; violence is another good example.

Children and Families Bill

Baroness Hamwee Excerpts

Monday 14th October 2013 Grand Committee

[Baroness Howarth of Breckland (CB)]

My Lords, I shall speak only briefly to the amendment because I presume that the Minister’s response will be that this should not be necessary because it should be provided by local authorities through good practice. I support the amendment simply because the postcode lottery in local authorities means that some will get good services, good information and steady support but a large number will not. The Government, in setting a framework, have a responsibility to ensure that there are consistent services right across the piece.

Many years ago, when I was dealing with children in care, I had to deal with what we called yo-yo children—those children who came in and out of care. When you identified a child who was not consistently either in care or at home, you settled down and set a proper assessment and programme for that child and made sure that there was a good way forward. I hope the Minister will have an answer to the kind of practice that is happening, otherwise, at a later stage, I will need to support the amendment.

As to special guardianship, when we were sitting in the adoption committee it became clear that there was very little difference between some children who were adopted and many children who were in special guardianship placements. The one difference was that those in special guardianships were struggling even more than those in adoption placements because, although the support is poor for post-adoption, it is even less for post-guardianship. Any services that are extended to adoptive parents must be looked at in relation to special guardianships, because these very often are the same children but have the benefit of being placed with those who know them and who loved them even before they were placed with them. I believe that is what the Government have been trying to do.

[Baroness Hamwee (LD)]

My Lords, I support what the noble Baroness has just said about special guardianship. It is a paradox that there were obstacles to special guardianship when it was a desirable outcome in particular cases.

I thank the noble Earl for arranging the meeting with the group of young people 10 days or so ago. I found it encouraging and disturbing at the same time. They were a remarkable group of young people. I do not think I could have been nearly as resilient as most of them seem to have been in the conditions they described. In support of the amendment, I shall read from a few of my notes: “There was no checking on the conditions I’d be going back to”, and the noble Earl has referred to the capacity of the mother and the physical conditions; “it depends on the child to tell or to ask for help”, which is a very salutary thing to have heard; “I went home once a month but no one checked up or even asked how the weekend went”, and the picture that I got was of variable circumstances and variable support depending, frankly, on where the child was. One—I hesitate to call him a child—young person said, “I should not have been allowed to go home”.

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[Baroness Walmsley (LD)]

My Lords, I make the point that if you want to know what a child needs, you should ask the child. If you want to know what the child’s parents need, it is also often quite a good idea to ask the child. People who are addicted are not always totally candid with the social workers, but if a child goes home for visits or is sent home—apparently permanently but that turns not to be permanently—he or she knows exactly what is going on in that home and can help the services in assisting the parents so as to ensure that the child can eventually go home if the parent is genuinely rehabilitated.

I also add my support to what the noble Baroness, Lady Massey, said about special guardians. They perform an invaluable public service at very little cost. Some of them break down because of lack of support and help, and we ought to do something about that.

[Baroness Hamwee]

My Lords, this is Committee: I was rather carried away by reading the notes and I meant to ask the noble Earl a question on his drafting in Amendment 26. In proposed new subsection (1)(a), he provides for,

“any person who has contacted the authority to request information”.

I suspect that he does not quite mean “any person”. I can imagine circumstances where it would be entirely wrong for information to be given out. Perhaps he can give the Committee some assurances about that, particularly if he is going to come back with this at a later stage.

[The Earl of Listowel]

I thank the noble Baroness. She makes a very good point and I shall look at that. We are trying to ensure that anybody caring for these young people gets the support they need to do an excellent job. We do not want people who might wish to misuse any information about them to get information.

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[Baroness Butler-Sloss (CB)]

My Lords, I strongly support the amendment. As I think I said at our previous sitting, when I chaired the adoption committee we had two meetings with children, one with looked-after children and the other with children who were or were about to be adopted. Each group made it absolutely clear, particularly younger children—the seven, eight, 10 or 12 year-old children—how important their siblings were. They said to us that siblings were more important to them than parents. Some of them would have liked to have seen their parents; they all wanted to see their siblings. It was so sad; one little boy said, “I’m so worried about my brother. I don’t know what’s happening to him. Nobody will tell me and I’m not allowed to see him. I wake up at night wondering how he’s getting on”. That is not acceptable for children. The amendment would alert everybody to the importance of siblings, which is why I support it.

[Baroness Hamwee]

My Lords, I very much agree with all that has been said. I remember being struck by the strength of feeling expressed by the young people. At our previous sitting we talked about the importance of identity; contact with one’s siblings and understanding that family dynamic is another aspect of identity. I have been impressed by somebody outside the group of people whom the noble and learned Baroness saw, whose feeling of responsibility for her younger sibling was important to her to express and fulfil. By separating her from her younger sister—by being deprived of caring for her—she was being deprived of the expression of her own personality. That was of huge significance to her.

[The Earl of Listowel]

My Lords, I would also like briefly to support the amendment and give an example of how passionately young people in care feel about being separated from their siblings. Delma Hughes, who was separated from her five siblings, I believe, later went on to become an art therapist and work with young and vulnerable people. She felt so passionately about correcting the wrong that had been done to her that she set up a charity called Siblings Together. It has run for several years, organising holiday camps in the countryside and events at the Young Vic theatre, so that young siblings who may never see each other apart from on such occasions can spend a week or so together. That woman is a real example of how terrible it feels to young people when they are separated from their siblings, and how at least one of them has become a champion in the area and made a huge difference to many other young people who have gone through that experience.

--- Later in debate ---

I appreciate your Lordships’ willingness to consider these amendments in the context of the Bill so that we can extend the logic of the noble Earl’s amendment on remaining in foster care, as I stated at the outset. To sum up, these are our most vulnerable children, whom we cannot allow to fall through the loopholes of provision.

[Baroness Hamwee]

Perhaps I may briefly put on record my support for the amendments, in particular for that of the noble Baroness, Lady Young. It struck me, listening to those who spoke in support of it, that we are talking about not casual interest but real need on the part of the children and young people concerned. It is important to understand that.

[Baroness Howarth of Breckland]

Perhaps I may say something briefly, going back to the amendment of the noble Baroness, Lady Young of Hornsey. What has happened to good recording? In the distant past when the Data Protection Act came into being, I was involved in writing some of the guidance—it is such a long time ago that I do not think I have a copy of it or any reference to it—about how data should be made available and where we should redact the information that should be kept separate. Good recording demanded that there were separate parts to the record which were absolutely clear and identified, so that if there was an appeal, someone could look at the separate parts of the record.

What has happened, I ask the Minister and local authorities, to personal story books? What has happened to the need to keep packs of photographs, which used to happen when I was in children’s departments and, early on, in social services? What has happened to those good social workers who shared their recording? I shared my recording with those people I was working with, so they had a copy—unless there was a child protection issue which could not be shared. Therefore you asked other people involved for their permission at the time to share information.

Some of those principles of recording have been lost over time. Perhaps Ofsted could look at the principles of recording these days. I am not saying that it is a simple issue. It is not; I understand how complex it is; but I think that some of the basic principles have been lost. If we returned to some of those, the issue would not be a forward issue. Clearly we have an issue going back for those people who find themselves unable to access records. I have seen records which are so redacted that they are unintelligible. I have had to go through them as an information officer. I felt so strongly about the professional issue that I wanted to intervene briefly.

--- Later in debate ---

Moved by

[Baroness Hamwee]

34: Clause 8, page 6, line 44, at end insert—
“( ) the benefit to the child of an order under subsection (2),”

[Baroness Hamwee]

My Lords, Clause 8 is also about contact: contact post-adoption. Subsection (5) sets out the points which a court must consider when there is an application for an order for contact by any person who has obtained the court’s leave to make that application. The court must consider: any risk of the application disrupting the child’s life to the extent that he or she would be harmed; the applicant’s connection with the child; and representations made to the court by the child or any person who has applied for, or been granted, an adoption order. I am quite prepared to be told I have misread this, because the amendment comes out of my own head: it has not been raised by anyone else with me. If I have got it completely wrong, I apologise to my noble friend who has put her name to it.

There must be a place for considering the welfare of the child. Section 1 of the 1989 Act states that when the court determines any question with respect to a child’s upbringing, the child’s welfare is the paramount consideration. Is that the answer in the sense that it would apply in any event? If so, why do we have the new subsection (5)(a) about the risk of disruption to the child’s life, because welfare of the child would clearly cover that? It seems to me that the balance of the clause as drafted, the presumption, is that if the risk of disruption to the child’s life is slim, you should not take account of it. I am curious—to use a term used earlier in a different context—about what has and what has not gone into the clause. I beg to move.

[Baroness Walmsley]

My Lords, I am happy to support my noble friend Lady Hamwee’s amendment, because it is never a bad thing to draw attention to the paramountcy principle in the 1989 Act and the fact that the welfare of the child must be pre-eminent. What she is suggesting is really nice, because it is positive. What we have in Clause 8(5)(a) is negative: that you should not do it if there is any risk. My noble friend is saying that you should do it if it is to the benefit of the child. I am a very positive person and I should like it that way round.

[Baroness Northover]

My Lords, I hope that I can reassure my noble friends Lady Hamwee and Lady Walmsley on this point. We are very concerned to ensure that when the child has contact, it benefits the child. There is both the positive side, when contact benefits the child; and the negative side, to protect the child where such contact is not regarded as being in their interest. It is striking that research has shown that the proportion of children suffering negative consequences from contact after adoption is twice the proportion for those for whom contact had a positive effect. In the light of that, this must obviously be weighed up extremely carefully.

My noble friends are clearly well aware that the paramount consideration of the court must be the welfare of the child throughout his or her life. Section 1(2) of the Adoption and Children Act 2002 states that the paramount consideration of the court when coming to a decision relating to the adoption of a child must be the welfare of the child throughout his life. I hope that that gives the reassurance that my noble friend is looking for. If it does not, I am more than happy to write to clarify, but I hope that she can be reassured that the balance is right and that the protections that she wants are indeed here in both directions, as it were.

[Baroness Hamwee]

My Lords, I am grateful to my noble friend. I agree that contact is important and frequently beneficial. I of course accept what she says about the Government’s intent. I am much less persuaded about the wording, because it seems to me that if the paramountcy principle applies, as it must, there must be a question why one is spelling out risk of disruption but only to the extent described. I do not quite understand the drafting, so I shall take up her offer of considering it further, but I beg leave to withdraw the amendment

Amendment 34 withdrawn.

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[Baroness Butler-Sloss]

My Lords, I, too, support the amendment. It is so obviously a good idea. I have a suspicion that if it is not part of the legislation a voluntary system will work in a few places and will be disregarded right across the country. It is for that reason that it needs to be made part of the legislation.

[Baroness Hamwee]

My Lords, the meeting arranged by the noble Earl brought a number of comments about Staying Put. It was clear that there is a shortage of accessible information—particularly because not all authorities are operating the system—and that there are real complications when there are cross-boundary considerations. That follows on from the point made by the noble and learned Baroness.

Some things were mentioned which really took me aback. When a young person becomes 18, if he or she does stay with the foster parents a tenancy agreement has to be signed. As a couple of the young people we met said, “This does not reflect our relationship. They are our foster parents; they are not our landlords”. It is necessary, I understand, to have a tenancy agreement in order to qualify for housing benefit and income support. I asked how the total income compared to fostering allowances and I was told by the foster carer we met that the total income had reduced by about 50%. He was very enthusiastic about his foster daughter remaining with him. That foster daughter also said—she was part of a sibling group—that she had to be CRB checked in order to stay with her sisters. Something has gone wrong with the system.

[Baroness Walmsley]

My Lords, I, too, have my name on the amendment and support it wholeheartedly. The noble Earl, in his introduction, used the word “normalising”. We are trying to normalise the relationship between the young people and their foster carers because, as my noble friend Lord Storey pointed out, most young people who grow up in their birth family do not leave home at 18. They stay on.

I was interested in what the noble Baroness, Lady Young, said about the pilots. It did not have an adverse effect on the recruitment of foster carers; indeed, it had a beneficial effect. It occurs to me that the Government might be a little concerned that if we make it a right for young people, if they and their foster carers wish it, to stay on until 21, it will take away foster parenting places for other children coming into the system. Frankly, I think that we should be putting more effort into turning the tap off and giving more support to families so that children can safely stay with their birth parents, but that is an argument for another day. That might be the case, but I have a suggestion that might fulfil some of the need without the problem of taking away a foster-caring place for some other child. I have promoted this idea to successive Children’s Ministers over the past few years, who all say, “That sounds like a good idea”, but nothing ever gets done.

Many children go off to university or college, or to work somewhere else when they are 18, but they maintain a close and supportive relationship with their birth families. Why not allow foster parents, if they so wish, and the young person wishes, to have a sort of little stipend or retainer to act as a supporter and adviser to the care leaver for the next few years when they have left the bedroom in the house? That bedroom would then be freed up. A lot of young people who get on very well with their foster parents go back and visit them and ask for advice anyway. But many of them, knowing that the parents may have taken on another foster child and will be busy, would be hesitant to go back to the foster parent and ask for help and advice when things go pear-shaped, such as their accommodation or education plans going wrong, or they have trouble with their employment. Whatever it is, they would have somebody officially who was being paid a little bit by the state to help them and stop new arrangements breaking down. It is when they break down that the state has a great deal more cost liability to try to put things right. There is an existing relationship of trust, understanding, knowledge and emotion. If the Government cannot accept the noble Earl’s amendment—I very much hope that they will—perhaps the Minister will consider my suggestion of a sort of halfway house. The parent could retain that relationship formally and, one hopes, the care leaver would have no hesitation in going back to that person for advice if things went wrong.

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[Baroness Hamwee]

My Lords, I have put my name to the amendment. I think that I could sum it up by saying that it would turn accommodation into care, and it is care that is needed. It is not surprising that children in this situation go missing, because the only people whom they know are those who have trafficked them. If they are given the means of staying in touch, as so often they seem to be, they will respond to a contact or make contact themselves. It seems that very often the first thing that happens is that they are given a mobile phone and instructed: “You keep in touch with us”. Whether this is the right way of going about it I do not know, but I have heard those around me who have much more recent or, indeed, current local authority experience muttering, “But the local authority has to do this”. Well, let us find a way of making sure that the local authority does more than what fulfils cold letters on paper and actually produces the service.

[Lord Storey]

My Lords, I would like to explore this in a bit more detail. Perhaps the Minister, if he is not able to give the information in his reply, could write to us. My experience in local government and as a head teacher is that, of course, children are trafficked, but some are trafficked because their parents in another part of the world want a better life for them, so they pay someone to put them on a plane and the poor child then arrives in the UK. As I understand it, there are regional centres where the children are received. There is one in Dover. Liverpool was and is another regional centre. The children come to Liverpool and Liverpool tries as best it can within the resources to cater for them and to look after them. I know that for two reasons. One is that, four or five years ago, our director of social services wrote a report saying, “Look, my budget can’t cope with the number coming in. We want to help, but it seems unfair financially that Liverpool should carry this burden”. Secondly, I also know as a head teacher that some of these children have been put into foster care. I gave the example at a meeting of a Mongolian street child, whose grandparents had paid a trafficker to bring him to the UK. He landed in London but was sent to a regional centre, which happened to be Liverpool, where he was fostered with a wonderful family in Halewood. He came to my school and he was well looked after. For me, the issue is not the reluctance of local authorities to deal with this but the sheer size of the problem and the support that they get. I hope that that makes sense.

Children and Families Bill

Baroness Hamwee Excerpts

Wednesday 9th October 2013 Grand Committee

[Baroness Hamwee (LD)]

My Lords, we have two amendments in this group. As we are starting in Committee, I begin by declaring an interest as a patron of PAC, which deals with both pre and post-adoption support and care and the Intercountry Adoption Centre. I am joint president of London Councils—of course, local authorities have adoption responsibilities—and I have other interests that are well in the past. I have been informed by the directorship of an adoption agency, membership of a local authority adoption panel and membership of the legal group of the British Association for Adoption and Fostering.

I enjoyed both the subject and the process of serving on the Select Committee on Adoption Legislation under the chairmanship of the noble and learned Baroness, Lady Butler-Sloss. Fostering for adoption is a concept much supported by members of that committee, although we all recognised that it may be of quite limited application. The Select Committee urged the Government to widen the scope of the duty to include it in options for all children for whom adoption is the permanent plan. I appreciate that that is why the Government made an alteration to the original draft clauses, although not the alterations that the Select Committee suggested.

I appreciate that my Amendments 5 and 7 would be pre-empted if the Committee accepts government Amendment 1. However—and I say this for clarity and not too aggressively—if we are not persuaded by the response to the other points raised in this debate, I for one will want to return to the matter on Report to deal with the equivalent issues in the clause that, if we accept the government amendment, will then have been amended.

My first amendment is to probe both the meaning and the weight of the term “consider”. It is not a technical term. When I first saw it, thinking very much as a non-professional, I wondered where on a spectrum of thinking about something—from something casually crossing one’s conscience all the way to making a decision—“consider” comes in terms of considering adoption. I then discovered that many professionals were also concerned. BAAF and the Family Rights Group, endorsed by other organisations, say that there is a wide spectrum between adoption considered as one possibility when all options are open and a formal decision that a child should be placed for adoption. Things follow automatically, step-by-step, when one is in the formal process. This suggestion is made that unless we link this provision to the statutory review process, we are not centring it properly as part of that step-by-step sequence. In defining a more precise trigger point, they suggest it when the local authority considers that adoption is the likely permanence plan. I accept that I have failed to bite the bullet by not offering an alternative.

I wondered whether I was fussing unnecessarily because if one looks at new subsection (9A)(a) of Section 22C, all that will be required is for the local authority to consider placing the child with a foster parent approved as an adopter. However, and this is very central to my point, I worry that a lack of clarity or agreement across the sector as to what is meant by “considering for adoption” may lead to inconsistencies in practice between agencies. That cannot be a good thing.

Given that the Government’s amendment proposes new subsection (9ZA)(b), I am even more unclear now about the local authority being satisfied that the child should be placed for adoption. Why is paragraph (b) required if being satisfied, in the terms set out there, is different from “considering adoption” in paragraph (a)? I hope that in reply the Minister can explain the distinction between the two paragraphs in the first part of his Amendment 1.

Amendment 7 would require the matching process to have been carried out; the noble Baroness referred to this and to issues coming to light which are not necessarily initially obvious. It is a very careful process which should be reflected in the legislation. I was not reassured by what the Minister said in the Commons about this. He said that fostering for adoption should,

“be used where the local authority has not … decided”,

on a “permanence option” and that it is,

“not … appropriate … formally to match the child and carers”.—[Official Report, Commons, Children and Families Bill Committee, 12/3/13; cols. 183-195.]

He also said it would be “premature” because a fostering for adoption placement was generally before adoption was the definitive plan. If permanence is the objective, I do not follow the logic of that.

There is of course an important place for guidance in all this. I thank the Minister for distributing the indicative guidance but it does not seem to deal with this. Surely it should at least be included as an issue, even if one does not go as far as the amendments that I have tabled. What a lot of this comes down to is taking all reasonable steps to avoid placing a child in a situation where disruption or a breakdown of the placement has not been considered adequately.

I know that my noble friend Lady Walmsley will say a word about Amendment 10. I absolutely take the point about work with families being difficult. On the drafting—this is a detail—I was not sure that it was necessary for an emergency to preclude the steps which are spelt out. I also wonder how this would relate to Section 47(5)(a) of the 1989 Act, which requires the ascertainment of a child’s wishes and feelings. I suspect that everything else in that section is subject to that anyway but perhaps the noble Baroness might say a word about that.

I finish by putting on record my huge admiration—and not just mine—for both foster parents and adopters. Above all, to be prepared to foster with a view to adoption, and therefore necessarily with a view also to not adopting, is particularly admirable. In the somewhat technical approach that we may have to take to some of this, it is appropriate that we should not lose sight of the enormous contribution that these families, which are sometimes a family of one, will make.

[Baroness Walmsley (LD)]

My Lords, I want to add a couple of comments to those of my noble friend Lady Hamwee, with whose words I totally concur. I have a great deal of sympathy with Amendment 10, and I urge the Minister to consider it and perhaps come back to us at a later stage with some further thoughts about it.

When we are considering all this, we need to bear in mind that adoption is not the only form of permanence, and we must not lose sight of that fact. It is not appropriate for many children. When it comes to considering placement with family and friends, on whatever basis, in my view you cannot do that early enough. A briefing that I received from the College of Social Work pointed out to me—I had not realised this before—that there is currently no duty on a local authority to consider family and friends before the child is taken into care. Given the 26-week limit that we are about to bring in, it would be very wise for the Minister to consider this amendment. It would mean that family and friends were considered even before the child was taken into care, and the concern that people have raised, that 26 weeks may not give family and friends time to come forward, would be averted if family and friends were being considered even before the child went into care. This amendment has merit, and I hope that the Minister will consider it.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, my noble friend Lady Jones of Whitchurch made reference to the UN Convention on the Rights of the Child. We have heard some very powerful arguments in support of these amendments. I simply want to support what has been said with reference to what the Joint Committee on Human Rights said on this, and I speak as a member of that committee.

My noble friend and others have questioned the evidence base for the Government’s position. The Joint Committee looked at the evidence and we asked the Government what evidence they were using. We came to the conclusion that the evidence simply did not support the Government’s position. There is clear evidence of problems with delay. We share the Government’s concern about that and I do not think that anyone is arguing that we do not need action to deal with it. However, the evidence to which the Government referred did not show that these delays were due to ethnic matching. Therefore, we concluded:

“We are … not satisfied that the Government has demonstrated by reference to evidence that the statutory provision it proposes to repeal has been responsible for delays in the adoption process to the detriment of children from ethnic minority backgrounds”.

Perhaps the Minister could explain to the Committee what this evidence is, because what the Government have provided so far is not convincing. The committee continued:

“Even if there were evidence showing that the ‘due regard’ requirement … has led to disproportionate weight being given to a child’s ethnic background”—

and as I have said, we do not think that there is—

“we fail to see why it would be necessary to remove from the legal framework all reference to ‘religious persuasion, racial origin and cultural and linguistic background.’ We do not follow the logic in the Government’s argument that including those considerations in the welfare checklist would still lead to them being accorded disproportionate weight”.

I am completely bemused. A lot was said about this at Second Reading. I do not understand why the Government are so resistant to the very sensible recommendation from the adoption committee that it simply should be part of the checklist. No one is arguing that it should be given disproportionate weight any more; that has been accepted. The very fact of taking it out, though, as has already been said, in a sense is giving disproportionate weight to the other view that, “Clearly, we mustn’t take any account of it at all because the Government said that it must not be part of the list”. I cannot believe that that is what the Government want to achieve. Perhaps the Minister will explain why they are so resistant to that simply being part of a list that gives equivalent weight to other factors. The committee stated:

“In our view, removing from the legal framework any reference to ‘religious persuasion, racial origin and cultural and linguistic background’ risks those considerations being regarded as no longer matters to which due regard must be paid, which would be incompatible with Article 20(3) UNCRC”.

There could be a challenge to that with reference to the UN convention.

The noble Baroness, Lady Young of Hornsey, referred to the need for other actions. The NSPCC suggested that legislation of itself will not address the problems of delay. The Government therefore need to commit to other actions such as paying attention to the need to actively recruit more adoptive families from a range of minority ethnic backgrounds; to give more support to adoptive parents and social workers to aid their understanding of the needs of minority ethnic children and improving long-term stability for minority ethnic children who are looked after; and, as has already been said, to consider how to boost permanency for such children beyond adoption, particularly through a consideration of guardianship, kinship care and long-term foster care.

I endorse what has already been said but I am completely at a loss as to why the Government are so resistant to this proposal from the adoption committee, which the Joint Committee on Human Rights has also endorsed.

[Baroness Hamwee]

I too have my name to Amendment 11. It seems that these issues of religious persuasion, racial origin and cultural and linguistic background have been the subject of a pendulum that has swung considerably backwards and forwards over the years. It may be that these issues are not everything but they are certainly not nothing. As other noble Lords have said, the Government have recognised that these issues should be considered along with all other relevant factors.

I thought what the noble Baroness, Lady Young, had to say about identity was so powerful that I do not want to pursue the issue myself because I could not say it as well. I just wrote down the word “identity” with big marks against it when I was making my notes for this debate. We must not suppress these issues. Our society comprises a huge variety of combinations of these different matters, and an increasing variety as people from different ethnic backgrounds marry one another and different mixes appear. There should not be excessive emphasis.

The noble Baroness, Lady Jones, used the phrase, which I think the Minister also used, “ramming the message home”. It is not for legislation to ram a message home; legislation should get the measure right rather more calmly. There is a danger that the message that will be taken is that these issues should now be ignored, when what really matters, as other noble Lords have said, is a placement with adopters who understand the issues and can support the child. You might come from exactly the same ethnic origin or religious background but not be able to support the child; they are not the same thing. The indicative guidance that we have received recognises this. I think that it talks—and if it does not, it should—about the need to recruit adopters from a range of backgrounds.

I do not think that there is a difference of view between what we are all saying and what the Government are thinking; it is not about the “what” but more about the “how”. The noble Baroness, Lady Lister, said that she was at a loss. I do not think that I am at a loss. There has been an oversensitivity, if I can put it that way, to what some parts of the media regard as “political correctness”, and there are better ripostes to that attitude in the media than the change in legislation that is proposed. I strongly support the amendment.

[Baroness Howarth of Breckland]

My Lords, I would like to say something about where I think this all came from. We should remind ourselves that in the 1980s racism was rife. When I was working at that time in local authorities, we had people called “race advisers”, some of whom were not the most helpful people. Some changed the whole attitude to racism; some made social workers take a particular view of race. I know that because I was the head of a social work department and was battling to get something rational, while the irrational was being pressed on the workers.

I make this point because I think that this Bill has so much of value and would hate to see one dogma replaced by another, but that is what is happening here. As the pendulum has swung, as the noble Baroness, Lady Hamwee, said, so the Government are feeling that we can stop all this and get placements moved on. However, we need to think about the issues—those points have been made eloquently and I shall not repeat them—and I hope that the Government take a rational rather than a dogmatic view of this issue because it is important for the children. I, too, have talked to young people whose ethnicity is extraordinarily important to them, even though they were placed, and have grown up, in white homes. They need to understand their ethnicity and their links. I hope that the Minister will accept that the welfare checklist is a very straightforward document and that this could be included without any difficulty.

--- Later in debate ---

Moved by

[Baroness Hamwee]

13: Clause 3, page 2, line 28, at end insert—
“( ) Directions under subsection (1) shall be given in writing setting out the Secretary of State’s reasons which shall be in accordance with regulations.
( ) A local authority to which directions have been given under subsection (1) may at any time—
(a) request the Secretary of State to review the directions,(b) appeal against the Secretary of State’s decision to the High Court.( ) The Secretary of State may at any time rescind directions given under subsection (1).”

--- Later in debate ---

[Baroness Hamwee]

This and other amendments in the group take us to Clause 3, which deals with the recruitment, assessment and approval of prospective adopters. That is the heading for the clause, at any rate, but it is in fact about the Government’s possible power to give directions to local authorities to restructure the way in which they deal with adoption matters.

The Government accepted the recommendation by the Adoption Legislation Select Committee in responding to proposals for a government power of direction. Looking back at the report, I thought that the language used by the Select Committee was really very mild, but then we endeavoured throughout to be as constructive, dignified and helpful as possible. We said:

“We … urge local authorities and partners to work together to make progress on these issues”—

that is, recruitment and so on—

“particularly in light of concerns that outsourcing adopter recruitment”—

which is what this would be—

“risks isolating adoption from other services for looked-after children. We strongly encourage the Government to allow sufficient time for the sector to develop viable and achievable alternative proposals, before using the new power”.

That was the bit that I thought was very mild.

The Government state in their response—and I agree with an awful lot of this—that a lot is happening in the sector, with lots of new, good things going on, and that they have invited the sector to consider further how to address its concerns. They further state that they,

“will continue to work with the sector over the coming months to monitor the impact and implementation of their commitments. The Government has told the sector that it will reach a decision in January 2014 about any further action it intends to take”.

If we had not had that date, which is now three months away, I would have felt more optimistic about how the Government might regard this provision. It seems very heavy-handed—a sort of legislative sword of Damocles.

There is anxiety among local authorities, and I shall come back to that, but I have heard that the voluntary sector, too, is anxious about the prospect of the Secretary of State giving directions that would transfer functions, or certainly action—“functions” might not be quite the right word in the context—to the voluntary sector. We might think, “Well, local authorities are going to object to this. They would object, wouldn’t they?”, but for the voluntary sector to be concerned fleshes out the issue. It is concerned about its capacity.

Local authorities recognise the need to recruit more prospective adopters, and there has been an increase in the number of adoptions, as we know. Eighty per cent of adopters are recruited by local authorities, so for the Secretary of State to exercise this power would be very significant. I believe that the Government, too, recognise the sector-led improvements, and I shall quickly mention some of them.

In London, local authorities are working together across the city to identify and implement improvements with both regional and sub-regional partnerships, and that includes partnerships with the voluntary sector. Similarly, outside London there are consortia of local authorities. We heard about some very interesting approaches to work when we were taking evidence on the Select Committee. In north London, the consortium has put together a single point of contact for initial inquiries and a joint database, it has collocated the adoption teams, it has consistent timescales and it is sharing training and publicity and marketing strategies.

As I said, the Select Committee had very good examples of joint working, although it identified some barriers to it as well. However, I do not believe that this is a simple matter of psychology—that a threat of directions will itself lead to improvement. The Minister has said, rightly, that the Government will listen carefully to the points raised on this. I quoted the words used in the response to the Select Committee, but lifting the sword of Damocles for a further three months—I am not even sure that this legislation will be through by January 2014, but that is another matter—does not seem to be the acknowledgement that its other words would indicate.

Amendment 13, which is in my name and that of my noble friend Lady Walmsley and the noble Baroness, Lady O’Loan, would require the Secretary of State to give reasons for exercising this power of direction and the reasons would be in accordance with regulations. There is a real lack of understanding about just what criteria the Government are setting and what they would expect local authorities to have achieved so as not to be at risk of such a direction. Local authorities need to know what they are doing wrong, if they are doing things wrong, and they need to know what they are regarded as doing right.

It follows from that—this is the second limb of Amendment 13—that there should be a right to request a review and a right of appeal against the Secretary of State’s decision. I understand the Government to be saying that this is not heavy-handed and that in fact it is a very precise response to the problems in particular local authorities. I am therefore a little puzzled as to why the Secretary of State would need to be able to give directions to all local authorities.

The noble Baronesses, Lady Hughes and Lady Jones, have amendments that deal with some of the concerns that I have expressed. I think that that is one of them. My noble friend Lord Storey and I are very concerned about this, but we are happy to look at amendments and to debate issues around this matter and how the provision might be ameliorated. We have an underlying feeling that it will be very hard to get this to a position that would leave us feeling satisfied, which is why we have also given notice of our intention to oppose the question that the clause stand part of the Bill. There is a single group of amendments for debate today plus the stand part. I start this debate in moving Amendment 13.

--- Later in debate ---

[Baroness Hamwee]

My Lords, it is quite distressing—in a Bill that, as noble Lords have said, by and large we welcome very much—to find oneself at the end of a debate even more worried than at the start of it. I do not say that flippantly. Of course I welcome the Government’s assurance that they will be looking to put forward an amendment to give greater clarity about the use of the power but, as others have said, that is only part of the story. I make clear to my noble friend that that was not a pun. A direction may be given, but we are not at all clear—I am certainly not—about what would be put in place if that direction was given. That is the very essence of the problem.

Clause 3, as has been said, is not the solution to the problem. If the Government are going to reach a decision in January about further action, I hope that the Minister will be able to share with the Committee what that action might be before we are legislatively committed to giving them an opportunity to take that action, whatever it is.

The noble Earl, Lord Listowel, referred to concern about the cost of using voluntary agencies. That indeed seems to be an issue that is around, but it is one that I hope has been satisfied when discussions have been had about it. It may well be that it is a function of the way in which local authorities operate that one budget holder is concerned about an expenditure that at the moment is effectively being covered by another budget holder but, if you looked at the totality of it, you would see that it was cost-neutral.

Perhaps I can have a discussion with the noble and learned Baroness about her response to the amendment. I should know, but I do not, whether other powers of intervention that might be comparable with this require reasons to be given and involve a right of appeal. I am not immediately sure about judicial review—I know that the Government are actually trying to reduce the use of judicial review rather than increase it—or whether it would be appropriate. Its origins were more about process, although it has been used very imaginatively recently. I am not sure.

Generally, the points that have been made about transparency and a better understanding of what the Government have in mind are hugely important. None of us endorses poor practice or failures, but this is certainly something that we will have to return to on Report. For now, however, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

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Moved by

[Baroness Hamwee]

18: Clause 4, page 3, line 2, after “asked” insert “at any time”

[Baroness Hamwee]

My Lords, this is a small amendment but it concerns an important point. Clause 4 takes us to adoption support services and the proposal for personal budgets. It requires a local authority to prepare a personal budget if asked to do so by the recipient of adoption support. My amendment would simply say: if asked to do so “at any time”. That is because I wanted to put before the Committee the possibility that problems may arise at any time and may manifest themselves at any time—for instance, when a young person who has been adopted as a child reaches adolescence. There are Members of this Committee who are far better qualified than I am to describe this sort of circumstance. My drafting is not very good and I acknowledge that the clause as drafted does not limit the timeframe, but I wanted to raise the issue and to ask the Minister what reassurances he can give with regard to support being available for as long as it is needed.

While I am speaking, perhaps I could comment on Amendment 19, which either the noble Baroness, Lady Jones, or the noble Baroness, Lady Hughes, is about to speak to, on the use of prescribed agencies. This amendment proposes regulations regarding agencies from which adoption support services can be purchased. I wondered whether that might be—while showing an understandable concern about quality, which I assume is what this is about—a bit too prescriptive. Personal budgets are about choice and personal responsibility and I was not very clear whether this actually fitted with the philosophy of personal budgets. I also wondered whether paragraph (i), which deals with the conditions that have to be complied with on direct payment, might not cover their concerns. Personal budgets are increasingly used in various areas of social care, but they are still developing as a way of working. It is also right to put on record that the Local Government Association is concerned that the clause is not commenced until findings from pilots are available. I beg to move.

[Baroness Jones of Whitchurch]

My Lords, we have two amendments in this group, Amendments 19 and 270. Amendment 19 is about the principle of personal budgets. Endorsing the view of the noble Baroness, Lady Hamwee, we welcome the overall approach of making personal budgets available to empower families and adopted children. The idea of personal budgets has been common and has been extending in care packages for children with disabilities for some time. When properly funded and organised, they have the capacity to give families greater flexibility and reduce the administrative burden on local authorities, so we see their advantages.

Our amendment was attempting not to be too prescriptive but to widen the scope of the use of the budgets. I am happy to go away and make sure that we have the correct wording in that respect. We were concerned to ensure that barriers would not be placed by local authorities on how the budgets could be used. While agreeing that this is a positive proposal, we are seeking clarification in new Section 4A(4) as to where the services can be bought from. Many voluntary adoption agencies offer adoption support services to their own adoptive families and presumably to local authority services. Sensibly, Clause 4 would allow these services to be bought by local authority adopters or by voluntary agencies. As it stands, new Section 4A(4)(e) refers to,

“the description of adoption support services to which personal budgets … may (and may not) relate”.

While this indicates that no restriction is intended, it would be clearer and more reassuring if specific reference were made to the use of non-public sector agencies. Again, just for clarification, that is what we are intending to do—to extend the provision. We believe that that would provide greater flexibility and choice for adopters, which is exactly the point that is being made. We will be very happy to look again at the wording at later stages.

Of course, while the use of personal budgets is welcomed in a broader sense, it does not in itself address the lack of adequate available support, which can of itself lead to adoption delays. For example, TACT has been in contact, telling us that it knows of adopters who have delayed seeking a final adoption order as they are unhappy with the support that they will receive afterwards. While the child remains in the care system, they have access to services that are not available after adoption. Therefore, this remains a separate challenge that needs to be addressed.

I echo the point that the noble Baroness made about the pilots that are taking place in other areas of social care. We believe that it is important to take the time to evaluate the impact of the pilots and to see how those lessons can best be applied to adoption services. Therefore, while we have tabled our amendment as a point of principle—we want to offer more choice—we think that time needs to be taken to learn from the pilots. I hope that the Minister can reassure us that a decision on commencing these clauses will not be taken until the findings from the pilots are available and are able to inform the implementation.

We have also tabled Amendment 270, but it very much mirrors the amendment from the Government on this matter, which takes on board the concerns of the Delegated Powers Committee. I think that both amendments attempt to address that issue. We are satisfied that the government amendment achieves what was asked for on that occasion, so we support that amendment.

--- Later in debate ---

In relation to amendments on adoption support, I therefore hope that noble Lords will accept the government amendment, and I am encouraged by indications thus far. I hope that my noble friend will be happy to withdraw her amendment.

[Baroness Hamwee]

My Lords, on the “at any time” amendment, the concern in my mind is that local authorities are bound to be increasingly reluctant as years go on to contemplate having to find funds to deal with a situation that has made itself manifest many years on from a placement. That is just a fact of human nature; I am not imputing any ill will. I wonder whether there might be a place to reinforce the point in the guidance, but I shall just leave that thought there.

On pilots, I appreciate that my noble friend has been involved in the Bill for about 24 hours, so I will leave this question with her as well, rather than expecting an answer. She said that pilots will inform the regulations, and it would be helpful to know whether the Government have any indicative timetable for publishing the regulations and commencing this scheme so that those who have made the point to us about the need to learn from the experience of pilots can be reassured that they will have the space to do so. I wonder whether I might ask her to come back to me following this debate. I see that she assents to that. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

25: After Clause 6, insert the following new Clause—
“Pre-commencement adoptions
(1) Section 98 of the Adoption and Children Act 2002 (pre-commencement adoptions: information) is amended as follows.
(2) For paragraph (a) of subsection (1) substitute—
“(a) assisting—(i) persons adopted before the appointed day,(ii) the descendants of persons adopted before the appointed day,who have attained the age of 18 to obtain information in relation to the adoption of the adopted person,”.”

[Baroness Hamwee]

I am sorry that we are coming to this amendment late on the first day. I understand that we started at 3.45 pm and intend to finish not before 7.45 pm. I am sorry, but not so sorry that I will cut down very drastically what I want to say because this is the moment to say it.

The amendment would introduce a new clause and I am grateful to be noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, for adding their names to it. The issue of information available or not available to the descendants of adopted persons was a matter brought to the attention of the adoption legislation Select Committee. We recommended that the Government amend legislation in order to bring direct descendants of adopted persons within the scope of the provisions that allow access to information or, more accurately, to intermediary services related to seeking information about the adoption.

Those who are entitled to seek information cannot simply go straight to the records without advice about the possible implications and the impact of their having information. They are required—and there are regulations dealing with this—to seek the services of an intermediary agency. Quite a lot of people can seek intermediaries’ services—a lot of relatives, but not necessarily those who are close to the adopted person. The birth mother’s half-sister and her husband can seek information and so can the birth mother’s stepfather and the birth father’s wife, when that wife is not the birth mother, but not an adopted person’s child.

The noble and learned Baroness and I first became aware of this from the situation of a lady in her 60s who discovered that her father had been adopted. She discovered this after his death when she found his birth certificate. She realised that it gave no details of his parents or the place of his birth, saying only “England”—a so-called amended certificate. Her reaction was to sympathise with him, as he had probably found out that he was adopted very late in his life, but she also felt annoyed and cheated,

“as if my relationship with him had been a lie”.

She said:

“Why hadn’t he told me? Why hadn’t he told my mother? She’d been married to a man for 50 years she hadn’t really known. I felt I owed it to her to find out”.

This lady started a very energetic search, all of which led to dead ends. She made an application to the court that the Registrar-General should disclose the information. The judge was very sympathetic—I have read the judgment—but, because of how the law stands, was unable to grant the application. She started a support group.

I have warned the Bill team that the Minister’s answer to this amendment is going to be considered very keenly by a lot of people outside this House who are affected by this situation—far more people than I think anybody had expected when this issue started to raise its head. I am obviously not going to give the Committee all the examples that I could of how people are affected but I shall mention one which came to me yesterday.

It concerns a social worker working with a man in his early 30s who has no birth information in relation to his father. His father died unexpectedly a few years ago aged only 48. He had started the process of looking into his adoption but died before he was able to access any information, and his stepmother had cleared out all the paperwork. I am told that in the light of the father’s unexpected death, this young man would like to continue the search on his father’s behalf, and he would also like to access any medical information. Of course, there are a lot of reasons why someone might want to have information. It is not just that adoption has become much more transparent over fairly recent years—it used to be a case of “leave well alone”. It is understood not just that there are practical or medical reasons but that the understanding of one’s relationship with one’s parent is very important. Family dynamics are important, and it is important to be able to pass on a proper family history to one’s children. We talked about identity earlier this afternoon; this is an issue of identity as well.

BAAF, the British Association for Adoption and Fostering, is very supportive of a change. The social worker who supported the lady to whom I have referred, who made an application to the court and gave evidence herself, said:

“Descendants can benefit a great deal from accessing information about their genetic origins. It can help people feel more connected and rooted, and provide a sense of belonging, helping bridge the past, present and future. It can help them understand why they have certain physical attributes and particular skills and abilities. It can also help people understand some of the adversities they have faced in life, for example, if someone suffered from depression and learned that their great grandfather committed suicide”.

The change that the amendment proposes is supported by many agencies, including major ones such as Coram, Barnardo’s and the Salvation Army. In 2010, BAAF asked the Law Commission how various aspects of adoption information—and this was one of them—might be considered by the commission. I understand that the commission saw it as a worthwhile project but lacked the resources to undertake the work.

I asked a Written Question earlier this year and the Answer from the Minister was that he understands why descendants of adopted people want to find out about their relatives’ history, but that there is a need to balance this against the rights and wishes of adopted adults and the adults’ birth family. It is a complex and sensitive issue which needs careful consideration before any change in legislation is considered. Let me emphasise again that I am not seeking direct access to information; I am seeking access to intermediary services, which will be provided on a case-by-case basis.

Before today’s debate, I sent the Minister and other noble Lords a question and answer sheet provided by BAAF, which I will not attempt to read into the record. However, I asked him to tell the Committee of any points that they have made with which the Government disagree. I suspect that one of those may be the numbers who will be involved. The Government at one stage estimated as many as 2 million people. BAAF has set out the calculation it has made, which falls far short of that figure. I would be grateful, therefore, if the Minister could tell the Committee whether the Government have an authoritative basis for the numbers that might be involved or a best guess. I accept that this is a question of cost, although the applicants will bear the cost by paying for the services.

Just as the Minister responded to me, in response to the Select Committee the Government referred to the sensitivities involved. It would be helpful if the Minister could spell these out and, in particular, how they differ from those already managed by the intermediary agencies providing intermediary services.

Finally, the Government have referred to the possibility of the Law Commission including the issue in its next programme of law reform. Reference to the Law Commission would not be unwelcome but, however sympathetic it may be, am I right in thinking that the Government cannot guarantee that the Law Commission will take on this work? I am sorry to have taken up the Committee’s time late in the day, but I think it was important to spell out a good deal of what lies behind this amendment. I beg to move.

--- Later in debate ---

[Lord Nash]

I assure the noble and learned Baroness, Lady Butler-Sloss, that we are not seeking to be disingenuous about this and we do regard the issues as complicated. My noble friend Lady Hamwee asked what evidence the Government have to suggest that if we make this provision it could open the floodgates or that the new clause would lead to unwelcome contact. The answer is that we do not have any evidence, which is why we would like the Law Commission to consider it and are prepared to provide funds. I hope that I have provided sufficient reassurance on the amendment and I therefore urge the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, perhaps I may reinforce, if it is necessary because I think that it will be clear enough in Hansard, the point made by the noble and learned Baroness. The Minister’s scenario is exactly that which we are seeking to avoid with this amendment. I am sorry that the Minister has not been able to explain the points about sensitivity and complexity on which the Government are relying. He has told the Committee that the Government will give the issue more detailed thought. I think I have got it right that the Government will consider how detailed information should be made available to the descendant of an adopted person. I do not believe that it is for the Government to think and advise how information should be made available to that person. Quite rightly, in 2002, the Government set up the structure of involving an intermediary.

Of course, I cannot press the matter to a vote tonight because we do not do that in Grand Committee. It would be remiss of me not to ask the Minister if it might be possible for me to meet him following this stage to reinforce and perhaps explain better than I was able to do in what I appreciate might have been a rather rushed introduction. Perhaps we may meet before Report to see if there is a way in which we can work with him to be as persuasive as possible to the Law Commission, if that is the way it is to go, that it should take on this work. I do not know what private as distinct from public communications there may be with the Law Commission. I certainly would not ask the Minister to say so tonight, but it is morally and practically wrong not to sort out what the noble and learned Baroness so rightly describes as an anomaly.

[Lord Nash]

I should be delighted to meet the noble Baroness. It seems to me that there is a clear misunderstanding and it is essential that I meet her.

[Baroness Hamwee]

I am very grateful for that and on that note I am happy to withdraw the amendment.

Amendment 25 withdrawn.

Children and Families Bill

Baroness Hamwee Excerpts

Tuesday 2nd July 2013 Lords Chamber

[Baroness Hamwee]

My Lords, in what my noble friend Lord Storey called a “progressive and promising Bill”, I will largely confine myself—today, at any rate—to Part 1. I should declare an interest because I was a board member of and legal adviser to Parents for Children, an adoption agency, many years ago and am a patron—one of several who are speaking today—of PAC, which deals with pre and post-adoption support.

Under the invigorating chairmanship of the noble and learned Baroness, Lady Butler-Sloss, I was a member of the Select Committee that played a sort of legislative leapfrog with the Government as they launched proposals into the public domain, so we undertook both pre and post-legislative scrutiny. What most impressed me during our work was the importance of early permanence and the increasing understanding of that and of the importance of identity: the need to know one’s identity and the need for parents to know and understand a child’s identity. It became clear to the Select Committee that many current concerns are more around practice than legislation. The logic of that should perhaps be fewer amendments, which will be a relief to the Minister. We shall see.

We heard that reforms already made to tackle delay in adoption need time to bed in, although they seem to be making a real difference. That went hand in hand with a warning that disruption caused by wholesale changes to the role of local authorities could significantly destabilise their implementation. I am far from convinced that removing local authorities from the adoption approval process is appropriate. Governments like to talk about a light touch; what is in the Bill is potentially very heavy-handed. Like others, I believe that joint working by local authorities with one another and voluntary agencies should be the focus, as well as dealing with what might seem marginal but are obviously quite significant difficulties, such as employment law, single Ofsted inspections and a number of other details.

It is unacceptable that prospective adopters should be deterred because an authority is small or is not willing to share, but better networking and collaboration across the sector must be the answer. I am entirely with the Association of Directors of Children’s Services, which talks about the shortfall not just in absolute numbers but in identifying suitable adopters and the benefit to be gained from local authorities going even further in their collaborative efforts on this. I believe that goes, in part, to pre-adoption support, which I will mention later. We also need to sort out any financial disincentives arising from the operation of fees.

I am very uneasy that the provision in Clause 3, which gives the Secretary of State a power of direction with regard to local authorities without spelling out the criteria for the exercise of that power, could mean that powers are removed from local authorities without certainty that the voluntary sector can cope. I do not think this is a matter for the market.

Going back to the beginning of the Bill and to something that several noble Lords have mentioned, the Bill states that when the local authority is “considering” adoption for a child, it must before doing so consider fostering for adoption. I, too, look forward to hearing what the Minister will say on this. The more I think about it, the less clear I am about what “considering” means. It is not a technical term. The Government’s own guidance says that the point at which it is appropriate to plan for adoption varies from case to case.

I am also worried about the presumption later in the Bill that the involvement of a parent in the life of a child will further the child’s welfare. If the child’s welfare is a paramount consideration, as it is, must be and must remain, how can there be a presumption?

I will continue to sing the Select Committee’s song with regard to ethnicity. The existing framework does not prioritise ethnicity. I do not believe in legislation being used to give messages, but I think that sometimes if you repeal legislation, it does give a message. I agreed with the committee that retaining ethnicity as a factor, listing it as part of the welfare checklist, is important. It is about understanding identity. We heard from the chief executive of PAC in the following terms:

“It should not just be that there has been an attempt to find the right racial family for this child, it has not been possible, and so any family will do. It has to be a family that understands and has committed themselves to that journey”.

That is one of a wide range of issues on which both the adoptive person and the adoptive parent may need support—something that I cannot stress too strongly. I look forward to looking at how the proposed personal budgets will work, given that the availability of sources of support is at least as important. I noted that the amount of the budget comes higher in the list of matters for regulation than description of the services.

During the course of the Bill, I intend to raise the matter of access to information by the descendants of adopted persons, which I know also interests the noble and learned Baroness, Lady Butler-Sloss. I do not have time to go into it this afternoon, but I understand that the Ministry of Justice is concerned about the scale of the issue. I also know the commitment of my noble friend Lord McNally to freedom of and access to information.

I end with the issue of contact. I was very interested in a report that many noble Lords will have received recently from the University of Oxford and the University of Sussex about what is important in contact. I picked up a lot about the child’s voice being heard. I have pretty much unbounded admiration for people who foster or adopt; it is almost beyond my imagining. I also have a lot of admiration for the social workers involved and for the children who cope and contribute to their own success. It was salutary to hear the point from children during our work on the Select Committee, some of whom said, “They don’t listen to me, because I’m a looked-after child and they are professionals”. Another child said, “People listen only to what they want to hear”. In our scrutiny of this Bill, we need to listen to children very carefully.

Adoption: Adoption Legislation Committee Reports

Baroness Hamwee Excerpts

Thursday 16th May 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I, too, sincerely thank our chairman and all who advised and assisted us, who, from where they are sitting probably want to join in this debate. They joined in very helpfully in the committee. They made it an enjoyable and productive process, about which I want to say a word.

I have been involved for some years in judging awards, mostly in the local government field but more broadly, to scrutiny committees and scrutiny branches of organisations. I have been increasingly aware that scrutineers are being involved by their executives in co-operative and forward-looking, not merely reactive, responsive work. I hope that we have fulfilled something of that function in our work. Our chairman has referred to some of the evidence given by children and their carers about their experiences of care and adoption. She, like me, might sometimes put quotation marks around the word “evidence” but they contributed to our consideration. I have been wondering about whether, as Bills come before committees of Parliament, there might be more scope for combining our current work with the sort of post-legislative/pre-legislative scrutiny that our inquiry became. This is done more by the Commons than it is by us. Is there room for more liaison? Perhaps I should pause while I am struck by a thunderbolt for suggesting any such thing. However, I hope that both Houses can continue to explore new ways of looking at what we are doing.

Like other noble Lords, I found the leapfrogging government announcements somewhat frustrating at the time but, with hindsight, I recognise that there was more of a pattern to them than it felt when we were doing it.

I have come across some amazing people in the adoption world. I first became involved with adoption towards the end of the 1970s, and I want to use this opportunity to put into Hansard the names of two couples who formed the agency, Parents for Children, with which I worked. Both couples—Sheila and Michael Crawford and Hilary and David Chambers, who also founded the Parent to Parent Information on Adoption Services that later became Adoption UK—were adopters of children with considerable disadvantages. With the first director, Phyllida Sawbridge, some really ground-breaking work was done in this country with, as I said, children who had multiple disadvantages.

Last year, I met Phyllida Sawbridge again, and we reminisced about, bluntly, the advertising of children who needed to be adopted, requiring permanence, and about other mechanisms, such as activity days, when potential adopters met children, involving picnics on Parliament Hill and that sort of thing. I wonder about the wheel sometimes being reinvented.

I was quite young at the time and maturity gives one a different perspective. What it has given me is a perspective on the importance of identity—one’s own identity. The first report that the committee produced dealt with the Government’s proposal regarding changing legislation concerning the place and consideration of religion, race, language and culture. We felt that our proposal gave those matters appropriate weight and an appropriate place, and I am sorry that when the Bill was published it was clear that the Government did not accept what we had to say.

Legislation is not everything—that was something that we felt time and again in our work—but changing the legislation, as the Children and Families Bill will do if it is unamended in this regard, sends a very particular message, and it is not a message that I am comfortable with. A parent’s understanding and a child’s sense of who he is seems to be one of those issues which is rather susceptible to the swings of the pendulum in thinking. The noble Viscount, Lord Eccles, referred to this as a moving target—a phrase that I may adopt at some point.

Another pendulum is where responsibility lies between the local and the national. I am naturally a localist but I found myself thinking again and again during the committee’s work that adoption is in some sense a national service.

The committee has expressed concern about the Secretary of State’s power to direct local authorities to outsource recruitment, and reference has been made to that. We encourage the Government to allow time for the sector to develop alternative proposals. I am not entirely sure what the Government mean in their response by saying that they will not impose a solution,

“unless it becomes clear that the sector as currently constituted is unable or unwilling to address these problems”.

The response goes on:

“We will, however, not hesitate to intervene if the sector is unable to make the urgent changes that need to happen”.

That sounds to me more top-down than I am comfortable with.

The Local Government Association, in its briefing for today—and I have no doubt that it will brief us extensively for the Bill—makes the point that, as many adoptive parents say, the relationship between adopters and their council lasts long after they adopt. It says:

“This is why it is so crucial that we have a joined-up adoption system”.

The committee identified issues regarding social workers’ training and continuing professional development and status following Professor Munro’s report. I was not left with complete confidence that the Government had understood what we were saying in this regard.

I understand that each local authority is accountable for its own performance but we heard interesting and encouraging things about joint working and consortia, to use the term quite widely. I hope that the Government’s response rejecting joint scorecards and joint inspections does not mean that they are rejecting out of hand ways in which authorities can work together. Like others, I was disappointed by the way in which the early intervention grant had been regarded, although we have been given information about new moneys which will become available.

The committee was fortunate to have members directing us to evidence and data. One of the areas in which more information is required is the breakdown of placements. Our chairman has referred to this already. I know that work is being done in this area but I am not clear how breakdown is defined and, in particular, whether any longitudinal work is going on or whether the Government, who I know have already commissioned some work, are looking only at the relatively short term. A problem with a placement arising from a child’s background may evidence itself perhaps only in the teenage years, and it may be quite difficult to untangle the components at that stage.

We have raised the issue of value for money and the costs and benefits of adoption support in this context and we learn from the report—or, at any rate, I learnt; others may have known of this before—of work commissioned from the Childhood Wellbeing Research Centre. I have given the Minister notice—not very much notice, I am afraid—that I would be interested to know the terms of reference of that work, how it is being carried out and, in particular, of course, who is being consulted. I have looked at the centre’s website and I notice that one of the partners in the work is part of the Coram Foundation, which has much experience, including in concurrent planning, but presumably a wider trawl is being undertaken.

The committee argued for post-adoption support, not only an assessment of adopters’ needs. I understand there is a lack of information as to how assessments are carried out by local authorities and adopters report varied experiences. There seems to be no model for the assessment—I would not necessarily support a single model—and that means that there is no benchmarking. I wonder how evaluation of the assessments is being undertaken.

The Government’s response to our reports also referred to work on a social impact bond. Again, I hope the Minister will be able to say more about developments for funding mechanisms which the Government are monitoring. I think I have used almost all the words which were applied to this issue in the report. It was a very short paragraph.

Finally, let me raise a narrow point which the noble and learned Baroness had in mind but did not develop—she is leaving it for the Bill—and that is access to information by the descendants of adopted people. We have evidence of the need for a change to the legislation. A woman who was affected was not herself adopted, but her father was, and she made an application to the court. She said:

“I believe that knowing my origin is an important part of who I am, and having access to my father’s birth information would restore my sense of identity and belonging. Society’s attitude towards adoption has been changing for some years, and these are amendments which should reflect a more open approach”.

The Government responded that:

“This is a complex and sensitive issue which needs careful consideration before any change to legislation could be considered”,

and went on to say that they are in discussion with the Law Commission. Can the Minister say today what considerations there are which are greater than or different from those applying in the case of adopted people? I might be able to imagine them, but I would be glad to hear them at this point.

We were asked to look at legislation and of course, as has been said, what we found was that there were issues mostly around practice. For reasons of time, I will not rehearse the arguments about the importance of early permanency, but I want to end by going back to some of my own early experiences, which still apply. In essence, although it is not the whole of it, if permanency is not achieved early, a child becomes a child who is difficult to place.

Adoption Agencies (Panel and Consequential Amendments) Regulations 2012

Baroness Hamwee Excerpts

Wednesday 25th July 2012 Grand Committee

[Baroness Butler-Sloss]

Before I continue, I should, with a further apology, make a correction: I went to see the two Ministers with the noble Baroness, Lady Morris, and the noble Baroness, Lady Hamwee—not the noble Baroness, Lady Howarth. I apologise to the noble Baronesses, Lady Hamwee and Lady Howarth.

As a former judge, I have my doubts whether the adoption judge hearing a placement application would be able to carry out a task similar to the panel, and whether they would have the evidence and the opportunity to carry out the detailed scrutiny expected by the Norgrove committee. I have some questions for the Government. On the assumption that the Government go ahead with removing this duty from panels, what will be put in its place? Will an independent person other than the decision-maker pull together all the relevant evidence about the child at an early stage and advise, or will there be a gap, with the potential for drift? Will the whole burden be placed on the decision-maker alone?

Is the department looking at active involvement of the IRO and, if so, recognising that the IRO would have to have a much reduced current case load? The adoption committee has not yet—and I emphasis this—formulated any conclusions on any of the issues that I have raised. However, we are concerned that there is a conflict of evidence and consequently some degree of confusion over the removal of the panel from this task. When the statutory instrument comes into effect on 1 September, the committee is concerned about this degree of conflict and confusion and what advice the department is going to give, particularly to local authorities, to resolve these issues and to avoid drift, lack of momentum and possible delay, with the case not being in order for the judge. I beg to move.

[Baroness Hamwee]

My Lords, I thank the noble and learned Baroness very much for bringing this matter to the Committee, and for her quite splendid chairmanship of our committee. I thank the Minister and Tim Loughton for the meeting last week. I am very flattered to have been confused with the noble Baroness, Lady Howarth, I must say. The meeting was extremely useful and I hope that we made it clear that members of the Select Committee share with the Government the objective of the best possible outcome. We have received powerful evidence about the impact of lack of permanence, particularly in the early years.

Given the jigsaw of interlocking procedures, it is important for the Government to explain why they are taking one step of several steps that may be available, and which I suspect will be taken quite soon, when a number have been identified. It is not always entirely clear why one step should be taken in isolation. I appreciate that one can argue it the other way—that if you have identified a step you should get on and do it—but this is quite a complex area.

The Explanatory Memorandum says that the objective of the regulations is to remove both delay and duplication. Delay is, of course, a loaded term. I am sure that the noble Baroness, Lady Eaton, has experienced, as I have, that when one is arguing planning applications in local government, delay does not actually go to quality. She is agreeing with me. Taking time may sometimes be necessary. Taking time unnecessarily is a bad thing, of course. The duplication that the Explanatory Memorandum refers to, as the Norgrove report did, is between the panel and the court. The noble and learned Baroness, Lady Butler-Sloss, will know how long a judge is typically given to read the papers—I suspect less time than a panel is, although I am always amazed at how quickly panels assimilate information.

The Government are not pointing to duplication between the panel and the decision-maker, who does not need the prior work of the panel, in the view of the Government. It seems to me that the decision-maker must need the same information as the panel, and Coram, to which the noble and learned Baroness has referred, regards the panel as providing quality assurance. Coram has given us some very helpful evidence, and the noble and learned Baroness has referred to the possible slippage in quality because of the loss of the independent element.

Coram also talks about adoption decision-making being delegated to less senior staff or the creation of a dedicated role that would not be integrated in the same way that the current post is. It also talks about the removal of independent panel chairs, and we have heard some very forceful evidence, particularly from BAAF, about the contribution made by independent members. The expertise from outside the authority brought to panels is really quite important. Alongside that, we are hearing quite a lot of concern about the lack of experience of adoption work among social workers. We asked the Local Government Association for its comments on these regulations, and, after a moment’s thought, one of the councillors who was at our session more or less said that authorities would invent a structure to replace panels. Admittedly, she might have been thinking about the abolition of panels as a whole, but it was a very practical response. If an authority sees a need to bring in outside expertise, it will find a way to do so.

The Government say that panels add no value, but I wonder whether the converse of that is the risk of abolishing what is excellent practice. We have heard that, in practice, panels meet frequently—weekly if necessary. If they do not meet often enough and are causing delay, their practice needs to be improved. I also wonder whether, if a panel is retained for matching a child with a family, that panel would not need to cover much of the groundwork that would have been covered by the panel dealing with placement.

When we met the Minister, Mr Loughton, he told us about the visits that he has made to sit in on and observe panels. He commented on the amount of material that panel members are expected to absorb, but he did not seem to say that they are failing. There are professionals, sometimes from different professions, who become skilled through the job that they are doing. I have to say that, as a society, we are very lucky that there are people who are prepared to do this job. I am not convinced that they should lose this role.

[Baroness Howarth of Breckland]

My Lords, I do not intend to repeat the very clear, coherent points made by the noble and learned Baroness, Lady Butler-Sloss, but I shall add to them. I am delighted that this debate is being held because the committee was extremely concerned when it saw the instrument. It is important to make the point that if the Government ask a Select Committee to undertake a task—in this instance to look at adoption—the committee should be kept well informed and other decisions should not be made without cognisance of the evidence that it is hearing and has heard. If it is not, we might as well all go home, rather than continue to work hard on the issues. I know that the chair is unable to say that but I think I can.

I shall say a little about some of the work around the family justice review, which was extremely complex and fraught. I know that because while it was being undertaken I was chair of CAFCASS, which was central to the disputes and discussions about delays and whether systems should be changed. David Norgrove did not say a great deal about panels but they are what I call low-hanging fruit. In looking at structures and systems, panels are one layer that you might be able to take out. You would then have removed a level of what looks like bureaucracy to move things forward. However, David Norgrove found an extreme level of mistrust between all the partners. I am sure the noble Lord, Lord Hill, spoke to him during that period. He was almost obsessed by the relationships between judges, social workers, CAFCASS and the other stakeholders in dealing with the issue. Therefore, finding good recommendations was important to him, and there is much in his report that takes us forward.

It is clear that, at present, many children spend far too long in care, moving in and out of it before decisions are made, and that we have to find ways of speeding this up. Views about adoption panels and whether they help or hinder the process are mixed. There is no systematic evidence. There has not been any decent inquiry into the working of panels. Again, I will not repeat what the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, have said about the evidence that we have heard from other parties, but people have anecdotal evidence that is as strong as any that might come from a review. I think that that would be useful. Personally, I am agnostic about panels and I suspect, as CAFCASS said, that they could be reviewed; that they come far too late in the process; and that the important thing is that the multi-professional information is gathered appropriately together to properly inform the decision. I do not think that the way in which that is processed has been properly looked at in relation to the decision to remove panels. Those are the things that would make a difference.

One of the other things that we know—I shall repeat this—is that when information gets to the judges, if they do not believe that they have enough expert information, they will commission experts to give it to them. A piece of work we have done recently is that of reducing the number of experts in court, particularly in the family courts, in order to reduce delay and speed up good quality decision making. It is quite clear that social workers and CAFCASS officers have a high level of expertise, but we also know that local authorities vary hugely one from another. What is the Minister going to do to make sure that when information goes to court, it does not add to delay because the judge is looking for the right information which he or she does not think has been quality tested? At the moment, they have the assurance that it has gone through a number of experts in a panel. It may be that there is an answer to this; I am looking for it.

I am also extremely concerned about the amount of work that falls on the shoulders of both decision-makers and independent reviewing officers. We have seen examples where the level of caseloads—certainly for independent reviewing officers and, I am sure, people up and down the country who have to make these decisions—is quite inappropriate in terms of being able to make the quality of decision that is needed. If Tim Loughton, when sitting in on panels, thought that they had a lot of material to digest, imagine what it would like for the decision-makers if they have to digest the material for themselves without having an expert opinion across a range of issues. They will be looking at psychiatric problems in some children who are going to be placed, or children with learning difficulties. We know that children who are being placed for adoption and coming through care are not straightforward babies with no difficulties. The panels help to assess that information before it is given to the judge in relation to the placement.

However keen you are on adoption, it is necessary to remember the balance between birth families and prospective adoptive families. There is a danger that, if you do not have good information on their families, which social workers in local authorities have to assess, there will be miscarriages of justice. That is of deep concern to me.

I would ask the Minister to answer the questions from the NSPCC which were repeated by the noble and learned Baroness, Lady Butler-Sloss. It is extremely concerned about the mix of practice across the country. I also ask him to tell me how he, being responsible in central government, can ensure that local government, with all the decentralisation, do not overwhelm those who have to make these decisions so that quality decisions continue to be made. I will rest my arguments there.