Children and Families Bill

Baroness Howarth of Breckland Excerpts

Tuesday 17th December 2013 Lords Chamber

[Baroness Howarth of Breckland (CB)]

My Lords, I support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss. As she said, we all know that when parents are in conflict they become engrossed in their own battle and lose sight of everything else of value, including the children. I apologise for my voice; I have just had the flu and therefore missed the first day on Report—some noble Lords will have been relieved about that.

I have talked to many children over the years, through my work at Childline and CAFCASS, who found themselves in that situation. They often feel that they are at the centre of that battle and not individuals themselves. I remember another famous quote that the noble and learned Baroness made at another time: we should never see children as objects of concern but as subjects in their own right. When parents haggle over children as property, it is our responsibility to ensure that their welfare is seen to. What has happened in the outside world is that in our attempt to focus, mainly on fathers, I have to say—there is not a balance between mothers and fathers, but a particular focus on the needs of fathers—we have lost some of that understanding of welfare, and the press really believe that fathers have had a bad deal.

I draw attention to a piece of research that was carried out recently by the University of Warwick under the auspices of the Nuffield Foundation. It looked at a large number of cases—197 were analysed— and determined how the county courts used a number of orders. It found that in contact orders,

“the courts are actively promoting involvement with the non-resident parent under the welfare paramountcy principle without the need for any further additional legislation. In 50% of all parental disputes studied, the post court care arrangement included regular, overnight contact allowing both parents to have involvement in the child’s day to day routine. 25% of cases ended in daytime only contact with the non-resident parent. Contact is often built up gradually by the courts using interim orders. This allows the courts to find an arrangement that works for the parent and the children”.

However, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, our great concern is for the families who do not go to court. Courts will often find a good solution and be able to work through it. However, there is sometimes a perception among families that there is a presumption that children will be shared. I sometimes think of that picture from the Old Testament of the child being held up by one leg with the sword of Damocles held over it; it was the good parent who said, “No, I don’t want my child to be shared”. That is often what you find: it is the good parent who gives in and gives the child to the other parent, because they want the best for their child. It is therefore on that basis—and before my voice gives out—that I support the noble and learned Baroness’s amendment.

[Baroness Deech (CB)]

My Lords, I will speak briefly in support of the noble and learned Baroness, Lady Butler-Sloss, who knows more about children’s law than practically anyone in this House. There is one real problem after divorce, which is that fathers, for whom the door is open, do not come and visit their children. We cannot do anything much about that. The clause may give such absent fathers the notion that they have rights but no responsibilities. If there is one thing that our family courts have got right in recent years, it is the welfare of the child. I very much hope that the House will listen to the wisdom of the noble and learned Baroness, Lady Butler-Sloss, and will let the courts get on with the good job that they have been doing without resorting to a rather artificial notion as set out in the clause as it stands.

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The Government have made this very clear in previous debates. There is nothing in this clause that could be read to give that impression. I fully accept that separating parents, particularly at a time of great emotional stress, are hardly going to consult Hansard or the relevant clause of a parliamentary Bill. I therefore accept that my noble friend is right; the media have a responsibility to report the intentions of this Bill properly and not to present it in a way that would give either parent a belief that this is equal-time parenting or anything else. It is still an attempt to encourage both parents to be involved in the future of their children, but in a way that safeguards the welfare of those children. As noble Lords know, part of the aim of this policy is to address this perception that the courts are biased against one parent, generally fathers.

[Baroness Howarth of Breckland]

I apologise for interrupting but, just so that the record is absolutely straight, the Minister has mentioned on two occasions the perception that fathers were not getting the same sort of attention as mothers. Does he acknowledge that the research carried out by CAFCASS and by Nuffield shows that that is a perception and not an accurate procedure? If the noble Lord continues to repeat that perception, it will be picked up again. It is not a fact.

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[Baroness Deech]

My Lords, I have grappled long and hard with this tricky issue. I should like to reduce it to three brief propositions, which have led me to agree with the noble and learned Lords, Lord Lloyd and Lord Brown. First, it is sadly too frequent that we do not know which of two parents may have harmed a child. Each blames the other; it is not provable; and one of them goes on to form another family. There must, therefore, be some danger because the parent either did it or stood by while it happened. Secondly, we are talking about only reaching a threshold. It is not a question of leaping to the conclusion that the child must be removed. It simply triggers the ability of the courts and social workers to investigate what is going on. Thirdly, there is absolutely no possibility of harm ensuing from the amendment put forward by the noble and learned Lords, whereas there is a distinct possibility of harm if this amendment is not agreed. A number of distinguished academics have written with great alarm calling for a change in the current situation and in support of the amendment moved by the noble and learned Lord, Lord Lloyd, with which I hope that the House will agree.

[Baroness Howarth of Breckland]

My Lords, I find myself in a maelstrom of lawyers with no voice. My position is that we been asking two questions which do not necessarily have the same answer. When I read the response from the department about this proposal, it became clear that we are considering two different issues. One is whether a local authority has enough powers to move into a family and take action if it believes that there is significant harm or the likelihood of significant harm. Of course, the ADSS and everyone else will say that they do have enough powers because that is clearly so. The criticism comes when local authorities do not move when they have that capacity.

The question we are considering is when two people have been in a situation where a child has been harmed. Perhaps I may put a bracket around that thought for a moment while we remind ourselves of the time when, if a child was murdered and you could not prove which of two people had done it, both were acquitted. There was a huge campaign by the NSPCC to ensure that that could not happen; that is, if a child was dead and clearly it was one person or the other, both people involved were likely to find themselves found guilty until such time as there was greater clarification. We can close the bracket there and say, “Here we are: we find ourselves in a situation where there are two people involved, someone has committed harm and maybe killed the child”. Recently, I spoke to a serious lawyer and a previous Attorney-General, who I probably should not name at the moment, who said, “If there is the slightest margin that there is a risk that the child might end up dead, what action do you take?

My noble friend Lady Deech has made the speech which I would have liked to have made. She has made important points. This amendment will do no harm. This afternoon, your Lordships have had a real seminar on Section 31 of the Children Act and the level of thresholds. It is important that we take action that protects children if it does no harm. I am more concerned that action is not taken by local authorities than that they are likely to whip children into care. To use a word we heard earlier, the “presumption” that local authorities take children into care wantonly is just not true. In fact, it is very difficult to get your child into care if you want to. A great deal of work and assessment thresholds should be considered.

All we are saying is that to get to the threshold of Section 31 where there has been this risk and there is possible danger, the local authority should be enabled to take some action, which will not necessarily, as mentioned by the noble Lord, Lord Elton, result in the child being removed from home. In fact, it is unlikely, unless there are serious risks, that the child will be removed from home. The amendment will clarify this bit of law. Do not worry if you feel confused: sometimes I find it extremely confusing and, despite what their bosses say, quite a lot of social workers on the ground find it confusing, too.

[Lord Walker of Gestingthorpe (CB)]

My Lords, the spectacle of a succession of retired senior judges re-arguing the law in your Lordships’ House may be a relatively novel and possibly relatively unwelcome experience for those noble Lords who are not versed in the technicalities, but I nevertheless rise very reluctantly to oppose the amendment. No one could be fuller of admiration and respect for my noble and learned friend, Lord Lloyd, who moved the amendment, but it is right to say a few words because this is not just a point for lawyers. It is a point of enormous importance. It is a terrible thing if a child is taken by the state away from his parent or parents on inadequate grounds on the basis of suspicion that is unfounded. It is also a terrible thing if the child is not protected against abuse in the home. There will always be cases in which it is hugely difficult for the courts to determine which of those is the more important, because it is often a question of balancing one risk against another.

As my noble and learned friend Lord Mackay said on an earlier occasion, I believe that the threshold test in Section 31 of the Children Act has stood the test of time. In one form or another, this point has been considered on at least six occasions since 1995 either by your Lordships’ House in its judicial capacity or by the Supreme Court. It is not correct that the case of Re J has suddenly plunged the whole of the law into uncertainty. Re J was a remarkable, unusual and sad case, as so many of them are. I will say a word about that and about what the Supreme Court decided. I will do that as briefly as I can.

My noble and learned friend Lord Lloyd gave us child A and child B. In fact, in Re J they went from child A to child F. We start with the mother. She is ultimately the wife in a stable marriage. The wife, in a relationship with another man, had child A and child B and child A died of serious non-accidental injuries at the age of only three weeks. That led to proceedings in relation to child B, who was the other child of that relationship. Child B was then adopted and disappeared from the scene.

Child C was in fact a child of the same mother and father but was believed to be the child of another father, and it was only later that a DNA test established the true paternity. Child C was one of the children who formed the later stable relationship between the wife and her husband. They had one other child, who was not the subject of care proceedings, child D, and children E and F were the children of the husband through another relationship.

So it was a very complicated situation indeed, and it was children C, E and F in relation to whom the care proceedings were taken out. By then, the mother, who was, as my noble and learned friend, Lady Butler-Sloss, said, very young at the time that child A and child B were born, appeared to be in a stable relationship, but in the proceedings relating to the death of child A and the future welfare of child B, the family judge said, almost in terms, that it was unnecessary to decide whether it was the mother or the father who perpetrated the injuries, because both were involved. Each covered up for the other and failed to see that the children received proper medical care.

That was the background to the later child proceedings in relation to child C, child E and child F, and those are the proceedings that ultimately came to the Supreme Court as Re J. They took an extraordinary course, as my noble and learned friend Lady Butler-Sloss mentioned, in that the local authority, for reasons best known to itself for which it no doubt sincerely thought good, decided that the case should be tried solely on the fact that the mother had been a possible perpetrator of the fatal injuries to child A, without letting in any other facts at all. That was the remarkable feature of Re J, which was the subject of considerable adverse comment in the Court of Appeal, in which my noble and learned friend Lord Judge sat, together with Lord Justice McFarlane and another Lord Justice. That, I suggest, is what made Re J truly a rare case, although the sort of problem that it raised is, sadly, by no means rare.

As to what the Supreme Court decided, it is correct to say that the noble and learned Baroness, Lady Hale, said, in effect, that membership of a pool of possible perpetrators is not enough unless the judgment goes as far as to say that, on the balance of probability, this was the perpetrator. My noble and learned friend Lord Lloyd said that Lord Wilson disagreed. He did, but he went further. He said that not only is it not enough, it should not be taken into account at all. Lord Sumption agreed with Lord Wilson, so they both went further than the noble and learned Baroness, Lady Hale, in saying that membership of a pool is not enough. The other three members of the court indeed expressed the view that the law was over- complicated, a view that one can readily agree with, but, nevertheless, concurred without hesitation in the result.

Since the original case in 1995, in which the House of Lords in its judicial capacity was split 3:2—a case in which my noble and learned friend Lord Lloyd was a member of the Court—there have been five unanimous decisions by the House of Lords in its judicial capacity or the Supreme Court which have reached the conclusion that this is how Section 31 should be applied.

My noble friend Lady Deech said that the amendment would do no harm. I respectfully suggest that it would, at least in this respect. It would introduce the phrase “a real possibility”, which is the judicial gloss that has been put on “likelihood, looking to the future”, to describe something that lies not in the future but in the past. If I may say so, that is a very unlawyerly way to express oneself.

I apologise: I have gone on at much greater length than I intended. Those are my reasons—with huge respect to my noble and learned friend Lord Lloyd—for opposing the amendment.

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[The Countess of Mar]

My Lords, unfortunately my noble friend Lord Ramsbotham cannot be in his place to speak to his Amendment 18, and he has asked me to do so on his behalf.

He tabled this amendment to try to ensure that, alongside the recognition that speech, language and communication needs are special educational needs for an increasing number of children and young people in this country, speech and language therapy retains its status as a special educational provision. This is important for two reasons. First, under the new SEN system, parents of children with EHC plans can appeal to the Special Educational Needs and Disability Tribunal only if this therapy is recognised as special educational provision. Therefore, it is vital that speech and language therapy, officially a healthcare provision, retains its educational status. Secondly, as originally drafted, speech and language therapy could be left out of an EHC plan on the basis that it is not “reasonably” required.

My noble friend is pleased to see that in Amendment 17A the Government appear to have recognised this; he is therefore pleased to accept the government amendment and for Amendment 18 not to be moved.

[Baroness Howarth of Breckland]

My Lords, I have a simple question about this. Having been sick last week, I may have missed the answer in all the mass of information that usefully comes from the department. Again, it is a question about implementation, as my questions usually are. When anything classified as social care and health becomes an education provision, it will be financed. However, how will it be financed in a college for disabled youngsters where there are myriad therapists, who might be physiotherapists or speech therapists, or where the youngsters may have a residential social care provision in the same place but that is linked to the education? That is rather crucial—almost more crucial than the legislation.

[Baroness Morgan of Ely (Lab)]

My Lords, I speak in support of Amendment 18 in my name and that of the noble Lord, Lord Ramsbotham.

There are countless examples of parents around the country who have had to fight for special educational provision for their children. Of course, this is much easier to pursue for middle-class, articulate parents compared with those from poorer households, but the need for clarity about what provision is available and who should provide these services is essential for all parents who need extra help for their children, irrespective of background.

The problem is that, rather than clarifying the position on special educational provision and ensuring the Government’s stated intention of carrying the current established position into this Bill, the wording of the clause in the original draft set a higher threshold than that which currently exists—a danger identified by the sector and expert lawyers. Therefore, healthcare provision and social care provision could be defined only as special educational provision if,

“made wholly or mainly for the purposes of ... education or training”.

If the healthcare provision or social care provision did not directly enhance the education or training of the child, it could not be considered to be special educational provision; it would simply be defined as healthcare provision or social care provision.

I shall not go into the details here of why that makes a difference, as those were rehearsed in Committee, but, thankfully, the Government have acknowledged the concerns of Peers and have introduced new wording as a result of opposition to the initial draft. There was still, however, concern around this new wording, which is why the Government have moved even further to amend the language.

We have come a long way on this clause. We are grateful to the Government for that and we would like to recognise the work of the noble Lord, Lord Ramsbotham, the Royal College of Speech and Language Therapists and David Wolfe QC. On the whole, I welcome the fact that, on this issue the Government have listened to our concerns, and I, too, will be happy not to press our amendment.

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[Lord Low of Dalston]

I, too, have put my name to this amendment and strongly support it. There is not a lot to be said in addition to what has been said by the noble Baronesses, Lady Wilkins and Lady Howe, but perhaps I could ask the Minister one or two questions which it would be helpful if he could respond to in responding to the debate. The information currently collected clearly does not include all children with SEN. What is being done to address that by the department? It is also clear that the information needed to be collected in order that we might get effective planning and commissioning is spread out over different data sets. It would be helpful to know what is being done to bring together the information to be found all over the place in different places to ensure that we get well informed commissioning and decision-making.

Finally, does the Minister know whether the department will take in hand the co-ordination of all the data required, or will that be left to local authorities? If it is going to be left to 152 different local authorities, it is difficult to see how the department will be able to meet the ambition set out in the Bill to improve commissioning without the data sets being improved. Does the Minister agree that it would be better for the department to co-ordinate this area of work rather than leave it to 152 local authorities? If it is left to the local authorities, it is hard to believe that we will get a coherent solution. There are bound to be variations and the data is bound to remain very patchy. Therefore, it would be very valuable if the department would take a stronger hand in co-ordinating this work and in making sure that we get the data that we need to have in order that the reforms in the Bill may be implemented in the way that the Government want.

[Baroness Howarth of Breckland]

My Lords, I understand that the Government probably do not want to increase the level of bureaucracy in local authorities in terms of information gathering. I also understand that they possibly do not want to have centralisation when one of their main tenets is to decentralise to local government. That being said, however, successive Governments have failed to get this right. Those of us who were involved in trying to implement the Chronically Sick and Disabled Persons (Amendment) Act 1976, which was a long time ago, remember that one of its main provisions was to try to get decent data on which to make strategic planning.

The only point I really want to make is that there is a conflict between that wish not to increase bureaucracy and not to be able to get consistent data on the same basis across the whole of the local authority areas in order to plan. It is not just local authorities which will be affected. I spend a lot of my time in charities. They need to plan their strategy for some very large amounts of provision. I have chaired a number of committees where we have needed data in order to make a decision as to how we are going to move resources from one area to another. If you do not have that information, you can get that wrong. I would like to know how the Minister thinks that that kind of strategic planning can be carried out when the data lack that clear underlying consistency but at the same time I recognise the difficulties that it may cause in other areas of the Government’s plan.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support Amendment 18C and very much echo the arguments put forward by my noble friend Lady Wilkins and other noble Lords in this short debate.

Clause 22 already sets out that it is a requirement on local authorities to identify all children in their area with SEN. The Government obviously intend this data gathering to take place and this work to be done; otherwise they would not have put this in the Bill. It therefore needs to be collected and collated in an organised and effective way. It cannot be argued that it is an extra administrative burden when the basic requirement for the information to be gathered is already in the Bill. Noble Lords have raised genuine concerns about the quality of data in the past and the challenge of improving that quality in the future. I would also like to ask the Minister how the Government, if they think that it is important for the information to be collected, intend to make sure that the quality is delivered so that a proper planning process can take place. Obviously, it is necessary to have this information as a precursor to planning service delivery for all those people with SEN in local authorities.

The amendment is partially about transparency. It is about making sure that the data are not only collected but shared in an appropriate way so that they help both planners and service users to have a more informed input into the local offer and help devise better services in the future. The data might also have the advantage of providing isolated families with the knowledge of how many other families, children and young people in their area share a similar type of SEN or disability, which may help to bring people together.

The amendment is very much in the spirit and intent of the local offer, which is designed to help parents, children and young people shape services for the future. That is part of an ongoing debate that we have been having. The data collection and the quality of that data are crucial to help make this happen. Therefore, I hope that the Minister will see the wisdom in the amendment and will be able to support it.