National Curriculum: Animal Welfare

Baroness Howarth of Breckland Excerpts

Tuesday 24th February 2015 Lords Chamber

[Lord Nash]

As I said, I agree entirely that animal welfare is an important subject for pupils to learn about, but we have to recognise the low base from which we are starting education in this country. When we came to power, fewer than one in five pupils attending a comprehensive school was getting that core suite of academic subjects that would be a basic expectation in many countries, and certainly in any private school. We have recovered substantially from that position: now nearly 40% get that core suite, but the Question underestimates the low base from which we are starting.

[Baroness Howarth of Breckland (CB)]

My Lords, will the Minister commend those organisations that take the trouble to take animals, particularly dogs, into care establishments and schools for children with learning disabilities? It has been shown that those youngsters improve their behaviour on encountering animals. Maybe this is one area where we could increase attendance.

[Lord Nash]

I agree entirely with the noble Baroness. Organisations such as Battersea Dogs & Cats Home, Blue Cross, Cats Protection, Dogs Trust and PDSA do excellent work. I am sure she will be interested to know that, under the Government’s successful free school programme, we will have the Milton Keynes special free school opening next year. It will be a 70-place alternative provision primary school for pupils with social, emotional and behavioural difficulties. It will incorporate a forest approach. They will keep chickens and will be taught by an experienced poultry keeper.

Education: Citizenship

Baroness Howarth of Breckland Excerpts

Wednesday 14th January 2015 Lords Chamber

[Lord Nash]

My Lords, for the first time, the national curriculum is making financial literacy a statutory part of citizenship education. Pupils learn the importance of budgeting, the sound management of money, credit and debt, and gain an understanding of different financial services and products. The curriculum in maths has been strengthened to enable pupils to make financial decisions and understand percentages. Moreover, we are promoting materials produced by the financial education charity PFEG, and by HMRC.

[Baroness Howarth of Breckland (CB)]

My Lords, at a time when we are seriously concerned about the radicalisation of young people in schools, and when we know that children are very concerned about what they are seeing on television, what work is being done with the Home Office to ensure that these issues are clearly covered in citizenship education in schools?

[Lord Nash]

I can assure the noble Baroness that we have an active programme of co-operation with the Home Office to ensure that these matters are covered and that young people are not subject to radicalisation.

Employment: Young People

Baroness Howarth of Breckland Excerpts

Wednesday 10th December 2014 Lords Chamber

[Lord Nash]

I certainly agree that schools should be held accountable for providing careers advice. Ofsted has made it clear that it will look at this very closely in its leadership category and we have strengthened the framework in this regard. I have already said that I do not think there is any one way of providing careers advice and I do not think that we should rely too much on one-to-one advice. Rather, we should involve the world of work much more in careers in the way we have been discussing.

[Baroness Howarth of Breckland (CB)]

My Lords, the Minister will know very well that the young people who find the transition from school to work most difficult are disabled young people, particularly those with learning difficulties. What is there in this package for this group and how will the new agency work with those organisations that are already attempting to provide very good projects?

[Lord Nash]

The noble Baroness makes a very good point. I am aware of her experience in this area. As the guidance notes, the area where one-to-one careers advice may be particularly appropriate is for pupils with learning disabilities. We will ensure that the careers company makes sure that all pupils get the opportunities for careers advice that they deserve.

Children and Families Bill

Baroness Howarth of Breckland Excerpts

Wednesday 5th February 2014 Lords Chamber

[Baroness Howarth of Breckland (CB)]

My Lords, my name was also on the original amendment tabled by the noble and learned Baroness, Lady Butler-Sloss. I regret that the phrase,

“the welfare of the child”,

has not been retained. I am pleased that the Government have taken this as far as they have. Emotions run very high during divorce and separation proceedings and where children are used as chattels in the battle. For all the reasons that the noble and learned Baroness has already outlined, there is still a perception that it means shared parenting. I encourage Ministers to continue the battle—with the media, if you like—to ensure that that message does not go forward.

As a previous chair of the Children and Family Court Advisory and Support Service, I know how strongly some fathers will battle on, even if they really do not want care of the child. I say that as someone who has a strong belief in having two parents and had a wonderful father of my own. I always think it is important to say that because, if you are talking about difficult fathers, you need to make it clear that you are pro-fathers. I hope that the Government will do all they can to ensure that it is the welfare of the child that will count when this amendment moves forward.

[Baroness Jones of Whitchurch (Lab)]

My Lords, first and rather belatedly, I welcome the Minister. I can tell him that he missed a lot of very interesting discussions in his absence, but I am sure that he is well acquainted with where we have reached with the Bill. We look forward to working with him on these issues in the future.

Our names were also added to the amendment in Committee and on Report, so we feel we have a little ownership of it. The noble and learned Baroness, Lady Butler-Sloss, put it very well: there seems to be an established procedure that our wording can never be quite good enough and that it has to be corrected. We accept that the current wording is marginally better in terms of tidying up, so we are grateful for that. As the noble Baroness, Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss, have said, the important thing now is how this is communicated because there was some miscommunication before. We are grateful to hear the plans that the Minister has for publicity because we would stress how important it is to get the message out there by whatever means necessary. Having said that, we are pleased to support the amendment.

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[Lord Touhig (Lab)]

My Lords, in speaking to Amendments 4, 5 and 33, I commend the Minister and his officials for engaging with noble Lords on all sides on the issue of a single point of appeal.

Amendments 4 and 5 move some way towards putting in place the missing piece of the jigsaw: a unified system of redress. Noble Lords, and indeed the Minister, have spoken of the exasperation that many families feel when they are up against a system that too many feel is adversarial. A petition organised by the National Autistic Society secured 15,000 signatures in support of a single point of appeal. I declare an interest as a vice-president of the National Autistic Society. Many families have battled the bureaucratic quagmire to gain access to support that they desperately need.

To date, we have not had a cogent explanation as to why the First-tier Tribunal, which sits in the Health, Education and Social Care Chamber, cannot hear appeals on all three elements of the education, health and care plan. Joining up redress across the three services is undoubtedly a complicated business, and the review of complaints and appeals promised by the Government, together with the pilots testing an expanded role for the tribunal, will provide us with an opportunity to work out how best to achieve our common objective. The consequences of not doing this have been spelt out and the Minister has certainly listened.

Turning to Amendment 33, the review of resolution of disagreements, together with the pilots testing an expanded role for the tribunal, will provide a pivotal opportunity to fully overcome the barriers to creating a unified appeals process. The Government’s policy statement about the review uses different terminology to describe the scope of the review and pilots. The review and pilots must consider the full range of options, including both appeals and complaints. This is vital for ensuring that parents trust the new system and that in the long run it will be truly responsive to the needs of children, young people and their families. The review and the pilots must include the possibility of the tribunal hearing both complaints and appeals, which should be fully explored.

It is welcome that the amendment places a duty on the Secretary of State and Lord Chancellor to lay the resulting report before Parliament. This is an important way of ensuring scrutiny and further informed discussion around these key areas. However, the amendment to Clause 74 does not outline any duty to consider the findings or to reflect the findings in regulations. This leaves the outstanding question as to what duty there will be on the Secretary of State and Lord Chancellor to respond to any recommendation to undertake definitive action as a consequence. In his opening remarks, the Minister went some way to try to explain how that will happen. I will read Hansard carefully and I hope that we will all end up in the same place at the end of the day.

I commend the Government on the substantial progress that has been made in the Bill. However, there is an outstanding concern about the transition from education to adulthood, particularly for young people and young adults with autism. Transition is a key focus of the Bill. At present the draft code of practice makes no reference to the Autism Act 2009. The draft code should signpost professionals towards this Act and the statutory guidance so that they can understand the needs of and their duties towards children and young people with autism. Will the Government consider signposting that within the code of practice and ensure that these reforms are adequately reflected in the transition section of the renewed autism strategy, which the Government are now about to undertake?

On Second Reading, I said that the House had the potential to turn the Bill into a landmark piece of legislation. Noble Lords on all sides have worked hard to ensure that the Bill achieves its stated intention: the improvement of the system of special educational needs for children, young people and their parents. To be fair, the Government have listened and worked constructively with those who sought to make changes. The Bill is intended to create a person-centred system which deploys a joined-up approach to delivering education, health and care needs for children with special educational needs. For that, we are all most grateful.

[Baroness Howarth of Breckland]

My Lords, I am not very good at accolades, but I just add to what has been said about the Minister’s capacity to listen and respond. It has indeed been remarkable and extremely helpful, so I hope that he will forgive me for asking a few more questions—it is in my nature.

I turn to the question of mediation. I had a number of exchanges with the noble Lord, Lord McNally, about the definition of mediation. I hope that the Minister can say for the record that mediation here has the widest definition. We know that some mediators operate a particular structure of mediation which can be very narrow and unhelpful to some of the programmes that are being developed. There are some innovative programmes of intervention on the mediation spectrum, and I hope that those are what we will have under the helpful government amendments.

On a rather unhappy note, all those provisions will be costly at a time when local government is facing further cuts. I know that the Local Government Association—I declare an interest as vice-president—is concerned about the implications. With the best will in the world, those who wish to provide services are sometimes inhibited from doing what they would like by the sheer cost. I noticed that the Minister mentioned a sum in his introduction. Perhaps he could clarify that—it went rather quickly across my thinking. We need to know whether some of the money will be clearly ring-fenced for local authorities to use for those very specific pieces of work.

On the review of tribunals—again, I think this is utterly remarkable—if the Government are able to achieve that joined-up piece of work, then we are well on the way. I am not sure that I would call it the holy grail of joined-up services, but it is what we have all been working towards for a very long time, and we are much further along the track than we have ever been.

I hear what the Minister said about the end date, but can he say when the start date is likely to be? The start date is really important in relation to the amount of time that will be available before the end of the two or three years, whichever is to be proposed.

Again, I add my gratitude to that of others for what we have achieved in the Bill. I hope that the Minister will take as much interest in its implementation as in its legislation.

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[Lord Ribeiro (Con)]

My Lords, I add my appreciation to my noble friend the Minister for getting us to the point where we are today. Little did I wonder when I introduced my Private Member’s Bill way back in July 2012 that we would actually be at this position. As the noble Baronesses, Lady Finlay and Lady Tyler, rightly said, this has been a cross-party initiative right across the House. I am grateful for the conversations that I have had with my noble friend and for the way in which the Government have shifted their position both publicly and privately. That is very rewarding.

Thanks to the Tube strike today, I came in by taxi. The best way to find out what the average member of the British public thinks about anything is to ask your taxi driver. I noted that he had a no-smoking sign in his cab. I asked, “What do you think about this Bill on smoking in cars that we might be able to resolve today?”. He held up a packet of cigarettes, to my surprise, and said, “I’m a smoker. I don’t smoke in the cab, I go outside to smoke. Why would anybody want to smoke in a car with children present? Why would they?”. That was his reaction. When we know that 85% of smokers think that it is bonkers to smoke in a car when children are present, we realise that we have finally made the point that this is more about child protection—protecting young children with young lungs, who are likely to end up with long-term respiratory problems—than it is about removing personal liberties.

I hope that the Government will continue to re-energise this educational programme because it is that 15% of the public who do not recognise the importance of not smoking in cars that we need to get at. I have every confidence that the Government will do so. Legislation can always be used as a blunt instrument but it is interesting that, since the seat-belt legislation was brought in, the current compliance rate is more than 90%. Some 95% of people who clunk-click would never even think of driving off without putting their seat belts on. In years to come, I hope that people will wonder why they ever smoked in cars with children present.

[Baroness Howarth of Breckland]

My Lords, somehow I never manage to get my name on amendments, but it never prevents me from speaking. I welcome the package of measures being proposed. Ever since I introduced the amendment that stopped smoking in the Peers’ Guest Room, I have been one of the team quietly working towards the place that we have now reached. The Minister must forgive me if I ask him to say where we are and when we will reach the point at which all these measures will be implemented.

I muttered to the noble Baroness, Lady Finlay, “Is it going to happen, or not? Or is it simply a power that a Minister will have?” Can the Minister give us a clearer picture as to when it will happen? I am still waiting for the shutters to go down in 2015 on tobacco in small shops. Every year it means that more children are not protected by all the methods that he wishes to introduce.

I have watched the noble Earl’s own journey. I believe he has always wanted to be here. He has taken us steadily, and somewhat cleverly, through to a point where the industry which was vociferous in its opposition has no representatives present here today. That is a very interesting position to have reached. I am immensely grateful for that but, with my usual impatience, I want to know when the implementation date will be.

[Lord Stoddart of Swindon (Ind Lab)]

My Lords, I am not going to break the consensus but I must declare an interest—as I did previously—in that I am an associate member of the Lords and Commons Cigar and Pipe Smokers’ Club.

This House has made its decisions on these matters and it is not for me, nor anyone else, to say that it was wrong, particularly since one of the amendments was voted on and carried. The House of Commons has yet to consider these amendments and I have no doubt that it will do so in its wisdom and in the knowledge that one of its duties is to protect all minorities, as well as majorities.

The noble Lord, Lord Faulkner of Worcester, helpfully quoted a Minister as saying that the policy of the Government was to stamp out smoking altogether. That is fair enough, but if that is their view—if they believe that smoking is so dangerous that it ought to be stamped out altogether—why do they not bring forward a Bill to make tobacco smoking illegal? I have asked that question before; I have never had an answer, and I doubt very much whether I am going to get an answer today. Those who take to smoking provide the Treasury with about £10.5 billion in extra revenue every year. An honest Government—a Government who put principle before financial gain—would say that this is so dangerous that we ought not to allow it to happen. I do not think that the Government will say that today.

I wish to ask one or two questions for clarification in relation to Amendment 41. The noble Earl has said “smoking in cars” several times today, but that is not what the amendment says. Amendment 41 refers to where a person under the age of 18 is present “in the vehicle”. There are many more vehicles than cars. I do not want to be helpful to the Government, but I am being helpful in pointing this out.

This clarification is necessary because, of course, there are other kinds of vehicle. What about motor caravans? They are not cars—they are big lorries, if anything. Is smoking to be banned in a motor caravan, which is a living space? A towed caravan is also a living space. Will they be affected? What about rickshaws? Smoking in cabs, incidentally, is already banned, if I am not mistaken, under previous legislation. We do not have a ban on rickshaws but we do have rickshaws in London. Are they vehicles? These matters ought to be clarified.

Another kind of vehicle that someone raised with me—I did not think of it myself—is a motor launch. Is that a vehicle? Will smoking be banned in launches when children are present?

These matters need clarifying and the Government will have the opportunity in another place to make those clarifications. I hope that I have been helpful.

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[Baroness Howe of Idlicote (CB)]

My Lords, as one who has been part of the process of this Bill almost from day one and who has watched the amazing progress that has been made, I want to thank the Minister for two things. The first, which has already been discussed, is the ability to provide education facilities for young offenders within institutions, which is a major step forward; the other is this amendment.

Parent carers should of course have the same consideration as other carers. To see parent carers of disabled children and their general well-being now being considered on the same basis is a huge tribute to the Minister and his team, who we have seen so effectively listen and respond to so many of these amendments. Even though I happened to be the mover of one amendment which did not get quite as far as I wanted it to, I share every bit of the appreciation for the work that has gone on behind the scenes as well as on the Front Benches. I thank everybody involved.

[Baroness Howarth of Breckland]

My Lords, I want to speak briefly to say two things. The first is that I understood some of the early concerns about ensuring that all children in need receive equal attention and about the difficulties when one group might find themselves with greater attention. I understand where the noble Lord was coming from in trying to think through that issue, but in our discussions it was quite clear—I think he understood—that, if you work with these as a family, you are not actually giving more attention. If the assessment can be done as a family, then it works as a holistic measure. Secondly, I want to pay tribute to the noble Baroness, Lady Pitkeathley. Without her indefatigable work for carers, we probably would not be where we are.

[Lord Nash]

My Lords, I thank the noble Baroness, Lady Pitkeathley, for welcoming this amendment and echo what the noble Baroness, Lady Howarth, has just said about her tireless efforts in this area. It is entirely down to her that we are where we are. I would also like to thank her for her comments about repentance and my noble friend Lady Tyler and the noble Baronesses, Lady Howe and Lady Howarth, for their words.

As I said previously, we cannot underestimate the contribution that parent carers of disabled children make. It is right that we recognise the particular challenges that they face in supporting their families. I am very pleased that we are able to bring parent carers of disabled children into the Children and Families Bill today.

Schools: Pupil Premium

Baroness Howarth of Breckland Excerpts

Monday 3rd February 2014 Lords Chamber

[Lord Nash]

As I said, my Lords, schools are required to publish online how they have spent the pupil premium and the effect it has had on attainment. If it had been used on general provision, they would have to justify how that had impacted all pupils. Ofsted inspections are increasingly focused on the achievement of disadvantaged pupils. It is now very unlikely that a school which is not showing good progression for disadvantaged pupils would make an outstanding rating.

[Baroness Howarth of Breckland (CB)]

My Lords, having information online is very helpful. It is even more so when heads are able to meet and share information about the way they have been developing programmes. I have recently seen work done by family learning programmes using part of the pupil premium. Will the Minister encourage head teachers to share good practice more directly, as this seems to have a real impact?

[Lord Nash]

The noble Baroness is absolutely right. Good practice, of which there is a lot available, should be shared. We are encouraging, at every turn, all schools to do what good schools do. School-to-school support is the best way of improving performance.

Children and Families Bill

Baroness Howarth of Breckland Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Storey]

I support my noble friend Lady Brinton on this excellent probing amendment, and will briefly take the opportunity to say that often the bully needs support as well. I have seen many occasions where that support has been given to the bully. Sometimes the bully, with the support of the parents, is referred and the problems are sorted. I say this with great caution but often, quite rightly, we put all our emphasis on the poor child or young person who is being bullied and we forget about the bully. Often with the bully, it is a cry or plea for help. As well as doing all the excellent things that my noble friend Lady Brinton is saying we should, we have to find and understand that need.

[Baroness Howarth of Breckland (CB)]

My Lords, I had not intended to intervene on this at this late hour, but I am tempted to, as I thought that every school had to have a bullying strategy and that there was a code. It may sit dustily on a shelf in the headmaster’s study but it is supposed to be there. I thought schools had to have a practice and some sort of plan to involve children and young people in that strategy. ChildLine has certainly produced peer programmes down the years where young people have worked together to prevent bullying themselves, through their councils. Much as I support the noble Baroness, Lady Brinton, in her efforts, it is my understanding that this should already be in every school.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I did not want our relative silence on these Benches to be interpreted as meaning that we were not in full support of the noble Baroness’s amendment. She will know that we have consistently worked with and supported her on these issues. Because of the lateness of the hour, I do not intend reading the speech that I had prepared, but will simply say that we think that having a national anti-bullying strategy combined with the code of practice, in the way that is described in this amendment, is a sensible staged approach to dealing with this very sensitive and growing issue. We accept that head teachers and teachers must have some discretion, as I think the Minister said in Committee, but they also need help and support. This package is the right combination for that and I hope that the noble Lord is able to persuade us that the Government are taking this seriously going forward.

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Moved by

[Baroness Howarth of Breckland]

63AZA: After Clause 104, insert the following new Clause—
“Parental bereavement leave
In the Employment Rights Act 1996, after section 57A insert—“57AA Parental bereavement leave
(1) The Secretary of State must make regulations entitling an employee who satisfies specified conditions—
(a) as to duration of employment, and(b) as to relationship with a child,to be absent from work on leave under this section in consequence of the death of a child.(2) Regulations under subsection (1) shall secure that, where an employee has a right to leave under this section, he or she is entitled to a leave period of at least 2 weeks.
(3) Regulations under subsection (1) shall secure that an employee who exercises his or her right to leave under this section—
(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he or she had not been absent, (b) is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and(c) is entitled to return from leave to a job of a prescribed kind.(4) In subsection (3)(a) “terms and conditions of employment” includes—
(a) matters connected with an employee’s employment whether or not they arise under his or her contract of employment; and(b) terms and conditions about remuneration.”.”

[Baroness Howarth of Breckland]

My Lords, in a few weeks, I will join families and children celebrating 20 years of the work of the charity Little Hearts Matter. The team provides advice, information and emotional support where a child has been born with half a heart, but the fact that we have surviving young people with us is significant. A little over 20 years ago, they all died. The survival of these young people is cause for celebration and recognition of the research, surgery and care developed over the years.

However, children continue to die because of the complexity of the condition, as they do with many other conditions. Many of our members who have lost their children due to complex congenital heart disease after a long struggle through treatment struggle thereafter because of the present regulations. There is little more devastating than the loss of your child. It creates emotional, mental and physical effects which overwhelm parents. To be told that you are entitled to only three days’ bereavement leave from your employer is neither caring nor supportive. There is much to organise and it cannot be good for the employer, as a bereaved parent is unlikely to be functioning at a normal level.

Let me briefly give two examples. The first concerns the father of a three year-old boy who died following complex surgery. The father had saved up his annual leave to be with his son through the surgery. After the operation, he stayed by his son’s bedside for two weeks as he slowly died. This used up all his leave. When his son died, the father rang his employer to explain and was told that he had to be back in three days. The funeral had not been organised at that point. The father lost his job because he could not return to work. He needed to be with his family.

In a second case, a father had known that his baby would be born with a complex heart condition. He had organised leave for the delivery and immediate surgical period, but his son died some weeks after the surgery. His employer told him that he had had enough leave and, as he had known his son was going to die, he would expect him back in three days having organised everything. His GP issued him a sick note to allow him more time to be with his wife, which his employer contested. The stress of fighting his employer, grieving for his son and supporting his wife created long-term illness.

Of course, this is not the whole story. There are many employers who support and help their employees through this difficult time but it is a lottery not a right. Relying on employers to be caring and supportive of their employees is clearly not enough. The law does not support the bereaved. With the increased recognition that parents have a right to be with their children after birth, it seems extraordinary that we do not extend the same thoughtfulness to parents who have lost a child. I realise that there might be nervousness that this could be a burden on business. Thankfully, the numbers affected are relatively small and we emphasise again that many employers act with compassion and sympathy and give time to their employees. However, where this is not the case, the impact on parents is huge.

This amendment would give the Government powers to regulate for statutory leave for bereaved parents. We hope this is reasonable—it allows the Government an opportunity to consult on the detail and to ensure the implementation is not burdensome but compassionate. It would make a huge difference to that small minority of parents who find themselves treated without compassion at some of the most difficult times of their lives. I beg to move.

[Lord Knight of Weymouth (Lab)]

My Lords, I am most grateful to the noble Baroness for moving this amendment and for doing so so movingly. I am also grateful to the Minister for meeting with me last week to discuss this issue and, in particular, I am grateful to those who have been part of the campaign, led by Lucy Herd, for their support and for carrying on offering heartbreaking personal stories to illustrate the need for this measure.

Just today, Lucy received an e-mail that said:

“My only son died last Tuesday (7th Jan) and my company policy states that I only receive two days in compassionate leave, the rest has to come out of my annual leave allowance. I think it should be law for people who have lost an immediate family member to have as much time off as they need”.

Lucy also told me of Rhian, who had been in touch through Twitter. About a year after Lucy’s son Jack died, Rhian’s 18 month-old, George, choked on the food that his dad was feeding him at home. Sadly George died. His father was distraught but was given only two days’ compassionate leave by his employer. He committed suicide seven days later. Rhian has now lost her son and her husband. That is a particularly tragic story, but it is worth noting that 90% of parents who lose a child also suffer relationship breakdown. Many parents lose a partner as well as a child.

These stories and many more like them show there is a problem. I read out different examples in Committee, showing that the NHS can be a remarkably uncompassionate employer at times. Those at the top of these big organisations will be appalled at how their rules can sometimes be applied. I heard today of a middle-ranking employee of one of our big high street banks who rang his boss the evening that his wife died following an illness. His boss was very sorry but there was a vitally important meeting the next day and could he please make sure he was in by 6.30 am.

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[Viscount Younger of Leckie]

My Lords, I am glad of the opportunity to return to this important issue on Report. The noble Lord, Lord Knight of Weymouth, has spoken passionately about this matter at Second Reading, in Grand Committee and again this evening. I have been deeply moved and saddened by the distressing accounts that I have heard of employees not receiving the support from their employers that they needed at such a difficult time. We have heard more tragic examples this evening from the noble Baroness, Lady Howarth, and the noble Lord, Lord Knight.

Losing a loved one is always a difficult experience. Losing a child must cause a grief that is beyond words. It is of course right that employees are able and feel comfortable to take time off to grieve in those awful circumstances. Grief is extremely personal, and everybody copes with the challenges that it brings in different ways. Individual employers are best placed to respond to the varied needs of grieving employees in a sensitive and appropriate way. Fortunately, as has been pointed out this evening, many employers are understanding and compassionate, enabling individuals to take all the time off that they need when they need it. However, as I acknowledged during Grand Committee, this is sadly not always the case.

At present, there is very little advice and support available to employers to help them to develop company policies or approaches to time off for bereaved employees. This lack of advice can mean that employers, particularly small employers who have no experience of bereavement in the workplace, are confronted with a situation that they do not know how to deal with. As a result, they may inadvertently fail to give their employees the compassion and support that they need at what is, we can all agree, a particularly vulnerable time.

The Government are committed to ensuring that employers have access to the right advice and information to facilitate good employment relationships with all their employees. When this issue was debated during Grand Committee, I gave a commitment that the Government would bring forward comprehensive guidance to support employers in meeting the needs of bereaved employees in the workplace. I am pleased to be able to announce today that ACAS has agreed to draw on its wealth of experience in workplace relations to develop guidance that will support employers in delivering their approach to bereavement. It is, of course, essential that we harness the knowledge and experience of expert organisations to get this guidance right so that it can support employers and employees in the most effective way. For this reason, ACAS will work in close partnership with Cruse, the leading national charity for bereaved people in England, Wales and Northern Ireland, and other expert organisations during the development and refinement of the guidance. The first round-table meeting with these organisations is scheduled for as soon as 5 February.

ACAS intends to road-test the draft guidance in a series of seminars with employers around the regions to ensure that the guidance is relevant and adds value. We expect the guidance to be published this summer and I encourage noble Lords who are in touch with organisations that have experience of these issues, and who would like to be involved in reviewing the draft guidance, to get in touch with my officials. Indeed, the noble Lord, Lord Knight, and I had conversations about this last week. This guidance will be comprehensive, covering the existing statutory entitlement to time off for dependants as well as providing advice and support about what is best practice in this area. It is essential that employers, as well as employees, are aware of the statutory provisions that are available. This will be made clear in the guidance.

As I mentioned, I recently met the noble Lord, Lord Knight, to discuss the Government’s approach to this issue and to understand better whether there is additional support that we could offer. I felt that we had a very productive discussion, during which he brought to my attention the fact that many of the parents who had reported being treated unsympathetically by their employers were, in fact, employed in the public sector. Since then, my department has made contact with employer groups in this sector, including NHS Employers and those in Civil Service employee policy, as the noble Lord, Lord Knight, will be pleased to hear. We plan to work with them to develop and find ways of promoting the best practice guidance that ACAS will produce. We also intend to work with business stakeholders such as the CBI and the CIPD to ensure that this guidance reaches businesses and to encourage them to review their company policies accordingly.

Bereavement is a particularly sensitive issue and to be comprehensive, this guidance will need to cover a broad range of issues and situations. I am confident that the guidance produced by ACAS will be of excellent quality. I hope that this is some reassurance to the noble Lord, Lord Knight, and the noble Baroness, Lady Howarth. It is, however, essential that we keep the effectiveness of guidance and how it is being applied in the workplace under review. This is what the Government fully intend to do. I understand the sentiment behind this amendment, and I believe that it is important that all individuals are able to take time off to grieve when they suffer the loss of a loved one. However, I think that a flexible and sensitive approach, tailored to the needs of individual employees, is what is needed at such a difficult time. It is not feasible to legislate to accommodate the vastly different needs of individuals, which are often the result of different personal circumstances, family relationships and religious observations. For this reason I believe that guidance, combined with working with our key partners to encourage employers to adopt best practice in their workplaces, is the best approach.

The noble Lord, Lord Knight, raised a number of questions and I will endeavour to write to him with answers, including the question that he raised on the linkage with the DWP. In the mean time, I hope that noble Lords are reassured by these commitments and will agree to withdraw their amendment.

[Baroness Howarth of Breckland]

My Lords, I believe we are deeply reassured and very grateful to the Minister. I am only sorry that I was not able to take part in the earlier discussions. As he knows, there were clashes with other discussions about other parts of the children Bill at which I had to be present. I have been in close touch with the noble Lord, Lord Knight. We are very reassured, indeed grateful, that this matter has moved at such speed. I am just grateful that I will be able to take back the news to the families I work with that something will happen and that we will not hear such tragic stories about families receiving no compassion at some of the most difficult times of their lives. I beg to withdraw the amendment.

Amendment 63AZA withdrawn.

Children: Racist and Islamophobic Bullying

Baroness Howarth of Breckland Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Nash]

My Lords, every school must have a policy and systems in place and bullying in school at any time is completely unacceptable. The Government are funding Show Racism the Red Card until the end of March to deliver workshops to 10,000 young people in schools. Of course I entirely agree with my noble friend that all of us in public life have a duty to behave responsibly and set positive examples.

[Baroness Howarth of Breckland (CB)]

My Lords, I was the first substantive chief executive of ChildLine and while I was there we produced a booklet in which children talked about racism. That was 15 years ago and it was one of our most in-demand booklets. It was especially in demand among schools which used it as a base for discussions among young people. Could Ofsted also look at how peer groups are developed? The other thing that ChildLine found was that it was far more progressive when young people worked together with other young people and talked about these issues, rather than direct teaching.

Children and Families Bill

Baroness Howarth of Breckland Excerpts

Tuesday 28th January 2014 Lords Chamber

[Baroness Howarth of Breckland (CB)]

My Lords, I had not intended to speak in this debate, but I find myself in some difficulties in knowing what I should think about where we are going. I have listened to the impassioned speeches and, like many speakers, I have had very direct contact with young people who have suffered in very real ways, as the noble Baroness, Lady Kennedy, illustrated, from the side effects of cyberbullying, the new technology and all those issues that will surely be taken on board when the group reviews the guidance in relation to schools.

I would, however, like to ask a couple of things of the Minister while I am thinking through where I stand. First, I am concerned that the review will not be comprehensive. The world is so different now. To the noble Lord, Lord Knight, I say it is a very different world to even when the noble Lord was putting his group together. It is certainly a very different world from when I was listening to children talking on the lines at ChildLine. Even then, very young children were extremely confused about sexuality. There is no doubt that we need to get sex education for all children firmly into the educational process.

I say to the noble Baroness, Lady Knight, that the age of innocence, with respect, is long past. If you have watched the penguins with David Attenborough or the midwife programme, you have it all there before you. Much as we would like our children to be innocent, what the parents that I talk to worry about is not the innocence of their children but how their children will protect themselves and retain their own capacity to be responsible in a world that bombards them continually with these images. No child who lives in the modern world, unless they are totally in a bubble, is going to escape that. We have got to ensure somehow that they are prepared.

In saying that, however, I want to hear what the Minister has to say about PSHE. I thought my noble friend made an extremely important point about relationship education not being all about sex, and I hope the noble Lord will hear that and, indeed, others who have spoken. Certainly, as the noble Baroness, Lady Jones, said, what came out time and time again when talking to children at ChildLine was that the issue was not just sex but the whole relationships issue—their friendships, how they negotiated groups and how they managed to move from one friendship to another without trauma. That was what mattered to them.

Unless we have that PSHE, for which the noble Baroness, Lady Massey, has campaigned for so long, which provides that thorough education—about how you grow up, how you become a citizen, how you learn to live in a mass of relationships and how you manage to negotiate this impossible world; thankfully, I did not have to negotiate that, but I now have to do so with those young people for whom I am responsible—I shall be very disappointed.

I know the Minister takes this very much to heart and would like to achieve something like this. I understand that it is not easy. I understand that it is about training teachers, about helping parents, and maybe about family learning, where families learn together about some of these issues.

I am uneasy, however, about voting for an amendment that simply puts sex education on the statute book without thinking through the complexity around how we achieve it. So my last question for the Minister is this: if he has an expert group and if he looks at how this might be introduced, would there be a timetable with an end date, so we do not go around the circle yet again without coming to an end that achieves something for our young people, who desperately need it in this modern world?

[Baroness Brinton (LD)]

My Lords, I was chair of education in Cambridgeshire in the late 1990s. One of the things that Cambridgeshire has always done well is sex and relationship education policy; indeed, many other authorities use its framework. I particularly want to reassure the noble Baroness, Lady Knight, that explicit sex, in the terms that I think worry many people, is not taught at key stage 1. Actually, the key stage SRE policy is vital because it provides child protection. I am looking at the Cambridgeshire syllabus at the moment, and it says that children must understand that they have rights over their own bodies, understand what makes them feel comfortable and uncomfortable and learn how to speak about it. That is exactly what I want a five year-old to be able to understand, and all the graded teaching, right the way through the system, is age-related and appropriate.

One of my concerns is that not all schools provide excellent SRE because there is no consistency across the sector. I am afraid that that is one of the reasons why we need to be able to provide that framework so that there is consistency. This is not just about the whim of parents or schools; it is vital for the health and safety of our children as they grow up in a very different society.

I have heard comments about worries about a review kicking things into the long grass. In this instance there is division—but then there is always division, as I think the noble Lord, Lord Knight would accept; had there not been division in his party when in government, this would now be compulsory. Let us not get into that political debate. We need to keep this debate on the agenda and keep it going. In a perfect world, I would like to see not only a compulsory curriculum but one that provided the reassurance that all parents would understand that their children were being given safe and appropriate advice to protect them in future.

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[Baroness Benjamin (LD)]

My Lords, I, too, support the amendment in the name of the noble Baroness, Lady Massey. Whenever I go into schools to speak to young people under the PSHE banner, I am amazed at how many are affected by being told that they are worthy and at how their confidence is boosted. Some are never told that they are loved unconditionally and that they can achieve. They have no parental guidance. PSHE helps them to cope with the materialistic, commercially led world they are living in. It helps them to learn how to deal with morality, honesty and integrity, and to understand that they can grow up in our society and be someone in whom people can put their trust. That is very important in today’s society, and children need guidance in that direction. Every child in the country, no matter what their background, needs to be exposed to good PSHE. We owe it to our future generation, so I support the amendment wholeheartedly.

[Baroness Howarth of Breckland]

My Lords, I also support the noble Baroness, Lady Massey, in her campaign and I believe that the Minister supports her too, whether or not it is through this amendment. Having been to the recent round-table discussion and knowing of the progress that the Minister has made, I simply ask my question again. Although the timescale may be shorter than he would like, with what speed does he think he can bring about a culture change in schools whereby PSHE is central to and a core part of all schools in all sectors? Many of us believe—and it has been enunciated very clearly in the debate—that this would make a real difference to the lives of our young people, who are trying to grow up in this very difficult, changing world.

[Lord Nash]

My Lords, this has been a very insightful debate. I thank all noble Lords who have tabled these amendments and other noble Lords who have contributed their knowledge and insights on this important matter. I am particularly grateful to the noble Baroness, Lady Massey, for her constructive and well argued contribution and for meeting me on a number of occasions to discuss this area in more detail. I also thank again all the noble Lords who came to the PSHE round table last week.

During our various debates and discussions on PSHE, SRE and related matters, two things have become clear to me. The first is that in the field of PSHE and SRE —character resilience, producing rounded and grounded young people, raising aspirations, pastoral care and so on—we share a common view that all these matters are absolutely essential to what a good school does. As I have already mentioned, we should embrace this as an example of how, despite the politics that often surround education, we have an absolutely common purpose when it comes to our expectations of schools. Certainly, I have a very high expectation of schools on these matters, and they should engage with all the relevant organisations and charities and so on to meet this.

As for the comments of the noble Baroness, Lady Howarth, I intend to ensure that there is such a culture change. This is absolutely essential in the offer of academy groups that are taking over schools that have been failing for years. They appreciate that there is no way that they can engage these children in education unless they are in the right frame of mind. We also know that, sadly, in recent decades our society has collapsed so much that schools have to do much more, standing in the position of parents in supporting children’s education. To me, PSHE is absolutely central. It is something that all good schools should do, and we are seeing it happen increasingly as we improve the state of education.

The second thing that perhaps I have been a little bit slow to grasp—I particularly thank the noble Baroness, Lady Massey, for bringing this home to me—is that not all schools share the belief that PHSE and SRE are so central and important. We need to give them all the help we can to link them to organisations which are specialists in the various areas and are able to update their advice, guidance, training and so on in a dynamic way, keeping abreast of the changes.

Noble Lords have heard me say many times that this Government do not wish to be too prescriptive about precisely what they set out for teachers. Such regulations can be updated only occasionally and cannot be dynamic and keep up with events in a fast-changing world.

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To refuse to accept this amendment would be implicitly to endorse a situation in which all forms of child abuse were unlawful except this one. I beg to move.

[Baroness Howarth of Breckland]

My Lords, I deeply respect the tenacity with which the noble Baroness, Lady Walmsley, has followed through this issue. I found some of her arguments rather convoluted and difficult to follow today, but that could just be that the hour is late and by now my brain is rather addled. However, I still contend that the current child protection framework, which identifies physical, sexual and emotional abuse and neglect, provides an effective framework for assessing situations where children have been accused of witchcraft and spirit possession.

Abuse can occur in these situations as a consequence of parental behaviour towards the child and through the response by church leaders in performing acts of deliverance that inflict harm on the child. As I have said before, and I declare an interest as someone who chaired a working party for Trust for London, I have met these children and engaged with some of the pastors, so I understand the issue. However, we also know, and the noble Baroness herself pointed this out, that belief in spirit possession and witchcraft is widespread among many African communities, and current knowledge indicates that the incidence of abuse linked to these beliefs is low. These beliefs occupy a broad spectrum and range, from the harmless to the seriously harmful. When it is the latter, the child protection framework should be applied through recognition, assessment and intervention.

Where the noble Baroness and I might well share a platform is in tackling the real issue here: the lack of training across this area, which is extremely complex. We have to remember that Christians believe some pretty strange things; in my community in the north of England, “He’s got the devil in him” was something that was said quite often. That is quite different from a child being accused of being a witch, ostracised from the family, made to behave in a particular way, taken before a congregation and pointed out and scapegoated. Those are quite clearly issues of abuse but they are not always understood by those working in the field.

As part of the group that worked with the then Trust for London, we explored these issues and the range of abusive behaviour, and that was paralleled by a government group that was set up to look at the issue at the same time. I do not know if the noble Baroness knows what has happened to that group, or whether it has simply disappeared and is no longer continuing.

It is clear to all involved that promoting child safeguarding and well-being is far more effective for engaging communities and churches than a narrow focus on witchcraft and spirit possession. My experience, working with a number of these community groups, has led to improvements in wider child protection, including through changed practice and disclosures. I hope that the noble Baroness will continue to press the cause of awareness and training, but I cannot stand with her in having legislation that identifies witchcraft in this way; it is a far more complex issue.

[Baroness Benjamin]

My Lords, I support this amendment. It has the best interest of the child at its heart and is targeted to raise awareness among those in our communities who may not realise the psychological, mental and traumatic long-term damage that they are inflicting upon the child. This issue was brought to my attention many years ago and sadly it continues today. I dearly hope that the Government will accept this amendment, as it is necessary to protect our children. If not, I hope that the Government agree at least to work with communities to make it clear that these acts are child abuse and will not be tolerated. The sooner that this takes place the better.

--- Later in debate ---

[Baroness Tyler of Enfield]

My Lords, the hour is late, so I will speak briefly in support of these amendments. I pay tribute to the tireless work of the noble Baroness, Lady Pitkeathley.

As has been said, through other parts of the Bill, the new right to assessment and support that have been introduced for young carers is wonderful. It was also my privilege to look at the detailed scrutiny of the Care Bill. Again, the new right to assessment and support for adult carers is a landmark piece of legislation of which we can all be proud. As has been set out, the one group that falls between the stools are parent carers—generally parents who look after disabled children.

I, too, had the privilege last week of attending the meeting with the Minister. It was a very poignant meeting at which we heard three parent carers explain what life was like for them. One, I particularly remember, was looking after not one but three disabled children. She explained how she simply never had a minute for herself. She said that she was grateful for the support that she got in respite care for her children, but that she would be lucky to have the time to pop into the supermarket on the way home before having to go and collect the children or do something for one of her other children.

My final point concerns why I think that well-being is so important. What is often forgotten is the impact on the personal and family relationships of parents who look after disabled children. I felt that this was underlined very well in an excellent report in 2011 from Contact a Family. This showed the mental health problems that parent carers were having, including anxiety, depression and breakdown. They had to see their GP because they felt that their well-being was so poor, and they often had medication or had to see a counsellor. There was also an impact on their marriage, often with a breakdown in the relationship.

For all those reasons—I would love to say more but there simply is not time—I strongly hope that the Minister will be able to say something sympathetic in response to these amendments.

[Baroness Howarth of Breckland]

My Lords, if I had got my timing right, my name would have been added to this amendment. I regret that something as important as this is being rushed at this late hour. This is a crucial bit of our social care that has become unscrambled because of the way that we have split adults’ and children’s social care.

Of course, in a Bill on children, when we are looking at children’s issues, the welfare of the child must almost always be paramount, but that is true throughout the legislation that we look at, and it would have been true if this issue had been looked at in the Care Bill. However, the Minister will remember that in the discussions on the Care Bill it was felt that this was a children’s issue and therefore better dealt with in the Children and Families Bill. Again, the split has meant that this matter has not been properly dealt with, and therefore I hope that the Minister can pick it up and deal with it properly now.

Anyone who has worked with families as a family social worker for many years will know that, unless you pay attention to the needs of parents, you can in no way help their children. It is the parent who is going to make the difference to the child by providing the care. If they have a life of their own and feel cared for themselves, they will give better care to the disabled child whom they have to manage day in and day out. Having met those families, the Minister will know the toll that that has on the humanity of these people, never mind everything else. It is very difficult to continue loving and caring for your children when the stress you experience is so high and the level of support you receive is so low.

I do not think that it is beyond the wit of the officials and the Minister to think this through, just as the issue of young carers has been thought through, to get a much better package that ensures that parent carers form part of a total assessment and that the assessment is not split down the middle because we just happen to split services down the middle. The whole issue needs to be looked at as a total package in a holistic way, and a proper plan should be made for the whole family and not just bits of it. In that way, we will have much more success both for the children and, most certainly, for the adults who give their lives day in and day out to caring for their children. If that does not happen, the children will end up either in respite care or in the care of the local authority, and that will cost the nation a great deal more.

[Lord Nash]

My Lords, I thank the noble Baronesses, Lady Pitkeathley and Lady Lister, for tabling these amendments and for sharing their significant expertise on the issues concerning carers.

Following the debate in Grand Committee, I was pleased to be able to meet the noble Baroness, Lady Pitkeathley, and my noble friend Lady Tyler just before the Christmas Recess to discuss their concerns further. Since then, there has been a very productive series of meetings between my officials and representatives of parent carers and local authorities to discuss the evidence and options for reform. As the noble Baroness, Lady Pitkeathley, said, she and I also had a further meeting last week with my noble friend Lady Tyler and representatives of parent carers. The meeting was extremely informative and moving and I would like to thank Caroline, Sarah and Sherann for taking the time to share their experiences with me and officials.

Children and Families Bill

Baroness Howarth of Breckland Excerpts

Tuesday 7th January 2014 Lords Chamber

[Baroness Sharp of Guildford (LD)]

My Lords, I return to the introduction that the noble Baroness, Lady Howe, gave to Amendment 25E and the issue of accountability. Government Amendment 33C is good so far as it goes, but it puts the onus on parents and young people using the service to police the sufficiency of the local offer. Perhaps my noble friend the Minister could correct me if I were wrong, but so far as I know there is no obligation on local authorities to publish the findings of their own reviews, which, as was emphasised by the noble Baroness, Lady Howe, they are obliged to make under Clause 27. Therefore, there is not the obligation to proactively improve their services that might arise from looking at whether their own reviews were sufficient, and acting on that. That picks up the point made by the noble Baroness, Lady Morris, that there are ways and means whereby innovation comes organically and internally. Equally, she made the point that for most parents there is not the opportunity to move authorities: whether they like it or no, this is the authority that they have to work with.

Again, I pick up the point made by the noble Baroness, Lady Howe, that, when we are talking about special educational needs, we do not mean only the few who have statements and will have the EHC plans now—about 3% of pupils. Something like 15% of pupils are regarded as having special educational needs and are treated under school action and school action plus.

It is now the schools’ responsibility to meet the needs of these pupils. We shall be talking later about the training that is necessary for SENCOs, and so forth. Most schools rely very much indeed on local educational specialists being available. One of the problems with the situation at the moment is that if there is no follow-up on whether or not there is a sufficiency of provision, there is a great danger that local authorities, whose finances, as we know, are being squeezed at present, will not find it necessary to provide outside the needs of those who actually have EHC plans, and that specialists in language, communication and behaviour will not be available to schools for them to be able to recruit to help them with the problems that they meet.

So I am somewhat concerned. As I say, the government amendment is good so far as it goes, but it is unfortunate that it does not follow through to requiring action on the reviews that the local authorities themselves have to make of their own provision.

[Baroness Howarth of Breckland (CB)]

My Lords, I support the noble Baroness, Lady Sharp, in what she was saying. I was rather taken by the government amendment because of its involvement of parents, children and young people themselves, but I could not see the follow-through. What we are looking for is an interrelationship between the legislation, the code and how it is applied and then how that is reported back, so that you have a virtuous circle and you can measure against what you are attempting to do.

In order to do that, you have to have absolute transparency. That is why I am also concerned about the phrase,

“it expects to be available”.

Unless families know with absolute clarity what is available and have some idea of what the local authority might be planning to make available—that might be what the “expects” is trying to achieve—how can they be engaged in a debate with the local authority in some sort of forum to move things forward in an innovative way? Being involved in two charities that work nationally, I know how very different the provision is across the country, but I still have grave anxieties about setting minimum standards, having also worked in a local authority that was strapped for cash in the 1970s, where we looked for any area of legislation where we could move back and save money. At this time, as I have said several times in this debate, we have to be absolutely open with families about what is and is not available. It is only if they are absolutely clear about that within the constraints of the finances that are available that they will be able to campaign, if you like, for an alternative that would better meet their needs. I encourage the Minister to look again at the phrase, “expects to be available”.

I find it far more difficult to know how I would vote on any of the other amendments, recognising the sheer complexity of the discussion that we have been having. I happen to have more faith in local authorities, and believe that if they have the opportunity and the resource they will do their best for the people that they want to serve.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, this is our first opportunity after the Recess to consider Part 3 of the Children and Families Bill. This is a good time to reflect on how far we have come in taking forward our shared ambition of a new framework for supporting children, young people and their parents—one that raises aspirations, improves outcomes and enables young people to prepare successfully for adult life.

On 17 December, the House passed a number of government amendments responding to important issues raised by noble Lords in Committee. These amendments will include disabled children and young people without SEN in key provisions of the Bill and ensure that local authorities exercise their functions with a view to securing that they identify both children and young people with SEN and disabled children and young people, and that health bodies inform the child’s parents and local authority where they are of the opinion that a child under compulsory school age has or probably has a disability. Local authorities will exercise their functions with a view to ensuring the integration of education and training provision with healthcare provision and social care provision for children and young people with SEN and disabled children and young people where they think this would promote their well-being, including in relation to their participation in education, training and recreation. Local authorities and their partner commissioning bodies making joint arrangements for the commissioning of education, health and care provision for children and young people with SEN will be amended to include disabled children and young people. Local authorities will keep under review all the education and training provision and social care provision for disabled children and young people and consult disabled children and young people and their parents when doing so. Local authorities will arrange for disabled young people and the parents of disabled children to be provided with information about matters related to disability—I have also tabled an amendment, which we shall come to later, to extend the requirement to cover children themselves as well as their parents—and local authorities will include disabled children and young people both in relation to the information to be published and in developing and reviewing the local offer and in publishing comments.

The definition of disability applied in relation to these government amendments is that in the Equality Act 2010. Since I have already given an undertaking to strengthen the links to the Equality Act duties in the SEN code of practice, they will sharpen the focus on those duties considerably. The code of practice is, of course, statutory and the guidance it provides cannot be ignored.

These changes followed a government amendment in Committee requiring schools to make arrangements for supporting children with medical needs, including children with long-term medical conditions, about whom noble Lords had particular concerns. These changes have improved the Bill and will improve provision for children, young people and families.

We have now had an interesting debate on accountability for services and the local offer. It is an important issue, and one on which a range of views was expressed in Grand Committee. I would like to thank the noble Lord, Lord Low, and the noble Baronesses, Lady Howe, Lady Hughes, and Lady Jones, for their contribution today and for bringing their experience into this debate.

I think it is important at the outset to reflect for a moment on the purposes of the local offer and on how the provisions in the Bill, the draft regulations and the draft SEN code of practice have been developed. The Lamb inquiry highlighted the need for parents to have clearer information about the support available and how decisions are made. Brian Lamb was clear that greater clarity and transparency reduces conflict and builds trust. That is why the SEN Green Paper proposed the local offer.

Since the Green Paper, we have worked with our local pathfinders and others to develop the statutory framework for the local offer. From this work, we know that local services will be much more responsive to local needs if local offers are developed with children and young people and their parents. This is precisely what we provide for in the Bill.

I appreciate the concerns that have prompted Amendment 25E, which was tabled by the noble Baroness, Lady Howe, on the review of education and care provision. I understand why she is seeking the publication of an action plan if the education and social care is deemed insufficient. I also understand her wish to ensure that local authorities address any shortcomings, but I think that Clause 30 rather than Clause 27 is the right place to address these issues, and I will say more about this shortly.

The provisions in the Bill will ensure that children and young people with SEN and disabled children and young people and the parents of children with SEN and disabilities are involved in improving provision where it is insufficient. Local authorities must consult and involve them when reviewing local provision, but I believe that the detailed mechanics of how local authorities work with local people and those providing services for them to improve provision are best left to the local authority—I take the point the noble Baroness, Lady Howarth, has just made—if we are really to secure services that are responsive to local needs.

As many noble Lords have mentioned, there is a government amendment in this group—Amendment 33C —which I would now like to explain. Local authorities must publish comments from children and young people with SEN and disabilities and parents of children with SEN and disabilities about the local offer, including comments about the quality of the provision available and about any provision that is not available. We make it clear in the draft SEN code that when local authorities publish their response to comments they should include the action local authorities propose to take. However, in view of the concerns raised in Committee I have tabled Amendment 33C to make this explicit in the Bill.

This amendment will add a requirement to Clause 30(6) to make it absolutely clear that local authorities cannot simply publish their response to comments but then ignore them. They must say what action they intend to take. This will provide even greater transparency and help to improve local accountability. As with every other part of the development of the local offer, children, young people and parents will be involved in discussions with local authorities about the action they propose to take.

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[Lord Storey]

My Lords, we all know that 70% of these young offenders have special educational needs. We also know that 10% or 20% of them have statements. We know, too, that a huge number of them—I do not know the exact figure but 70% or 80%—will go on to reoffend. Therefore, it is really important that this group of young people gets the best possible special educational needs support. When this Bill first came out, I found it unbelievable that EHC plans would not be going with these young people into their institutions.

One of the hallmarks of the Bill has been the Minister’s desire to discuss, consult and listen to what people say, and I pay tribute to him for doing that. During the discussions on this matter, it has become clear to all of us that the number of young people in these institutions is declining, as is the time that they spend in them—thank goodness. The practicalities of getting their EHC plans to go with them becomes very difficult, particularly if you are talking about different local authorities, and therefore what the Minister is proposing seems sensible.

I also pay tribute to the noble Lord, Lord Ramsbotham, for his remarkable knowledge in this area. I agree with him, and I hope that when the Minister replies he will be able to refer to the concern that a lot of us share about the words “best endeavours”. Sadly, the justice system is not an educational system, and “best endeavours” is too wide a hope—for example, “I use my best endeavours to get up early in the morning but I don’t”. I hope that noble Lords can see the point that I am making. The use of this phrase is a recipe for not doing the sorts of things that we in this House want to see provided for these young people. Maybe the word to use is “responsibility” or “duty”—I do not know—but I hope that the Minister will indicate that he will look at this again and come back with exact wording to make sure that the special needs provision that we all want to see is provided.

[Baroness Howarth of Breckland]

My Lords, I shall be brief, as I usually am, but I want to say two things. One is that when I read these amendments my heart leapt. I thought that if only the home local authority could be made responsible for every young person in secure provision on this basis with a proper plan for seeing them through—as I remember, and as I am sure my noble friend Lord Laming will remember, was the case in children’s departments, where someone was responsible for a young person, with a plan, wherever they were—that would be absolutely wonderful. Of course, at that time there was much more focus on education in the institutions, as childcare establishments, than there is in some of the more penal establishments that exist today.

So I was utterly delighted and was going to congratulate the noble Lord, Lord Ramsbotham, whose tenacity of purpose has taken this through, until I realised, as he did, the key flaw in this piece of legislation. That flaw is that those who wish to take the plans through are not the people with the capacity to provide the resource in order for it to happen in the place it needs to happen. As I am always interested in implementation, I thought about how this would work. There has to be a further step somewhere, either in some sort of regulation or a change in the legislation, that ensures that these plans are formulated into the institution—because, remember, these are individual plans. In the institution they have to be put together into programmes for groups of young people; it is not as easy as simply saying that you can carry each plan through as it stands without extra provision being brought in, with all the problems with that in terms of financing.

I hope that the Minister will look at this, take heart that many of us have been very impressed with the way he listens, and take it forward. Many of us are very concerned about young people in detention who have been failed by everybody by the time they get to detention, particularly those with special educational needs who should not be in this form of provision at all. Surely they can get the right education through this legislation, but they certainly will not with this flaw.

[Baroness Walmsley (LD)]

My Lords, I have a suggestion following what the noble Baroness has just said about implementation, but first I must say how pleased I am to see that my noble friend Lord Nash has listened tremendously well and gone away and done something about it. This has been a great example of the way this House works so well behind the scenes. I am very pleased that the blanket statement that all the good stuff in the Bill should not apply to children in custody has been got rid of and that my noble friend the Minister has grasped the opportunity that the Bill gives to put something better in place. Let us see whether we can get it as perfect as we would like to see it.

It occurs to me that it is a very good thing that the responsibility moves back to the home local authority. What we want to see when young people come out of custody and go back to their home local authority is continuity of provision. I know that the Local Government Association has welcomed this provision, but the people actually delivering the services while the young people are in custody are a company, an organisation that has been contracted to deliver that service from outside. They are not the prison authorities. These education services are provided by external organisations under contract. Why should those contracts not always have a proviso within them that says that there is somebody within the organisation with the responsibility of liaising with the home authority to ensure that the EHC plan is delivered, or the assessment is made, whichever is appropriate, and that the services are provided while the young person is in custody? That should be a condition of the contract for delivering education services within the prison. They should be obliged, under their contract, to provide what EHC plans say should be provided. I see no reason why that should not be a condition of winning a contract for providing services within a prison.

My final point is that I am particularly pleased about the duty that is being put on health commissioners to provide services within an EHC plan. I am aware, and the noble Lord, Lord Ramsbotham, has emphasised it on many occasions, that speech and language therapy is much needed by a high percentage of young people in custody. Let us hope that those services will be provided better in future under these new provisions.

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[Baroness Walmsley]

My Lords, I, too, welcome this group of amendments. From these Benches in Committee we proposed a group of amendments about the voice of the child and the child’s involvement with decision-making. We have not got all that we wanted but there is certainly a step in the right direction here today and I very much welcome it. I echo the words of the noble Baroness, Lady Howe, when she said how important it is that children have the information they need to enable them to take part in decision-making about matters that relate to them. This is a right under the UN Convention on the Rights of the Child and I am very glad that the Government have taken one step further towards implementing it.

[Baroness Howarth of Breckland]

My Lords, very briefly, I would be remiss if I did not welcome this amendment. I was directly involved for many years with children and giving children information, both in voluntary organisations and in the Children and Family Court Advisory and Support Service. It was clear to me that they did not know what information you had given them unless it was in an appropriate form. I hope that the code will take the best from some of the practice that already exists in some local authorities and CAFCASS regarding the form of information and the method of delivery to children and young people. Young children in particular can be involved very easily in many complex areas of their lives and indeed in decision-making if it is explained to them in an appropriate way by an appropriate person. I welcome the amendment but I hope that the implementation will be looked at carefully as there is good practice out there that could be used.

[Lord Pearson of Rannoch (UKIP)]

My Lords, perhaps I may just caution—I think that the noble Baroness has just touched on this—that it is all very well asking children and young people to take decisions but if there is any doubt that they are capable of taking those decisions in their own best interests then it is very important to consult the family, especially when the family is a supportive one. Your Lordships will know that I speak from personal experience on this subject.

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[Baroness Sharp of Guildford]

My Lords, my name is attached to many of these amendments and I am delighted to support them all. I also pay tribute to the Minister for having listened to the arguments that we put forward in Committee.

First, it was suggested in Committee that some young people over 18 might not need the help and support they had been getting. That would provide local authorities with an excuse for dropping such support after 18 by using those words “to have regard to age”. Secondly, and perhaps more importantly, it was said that the wording was too flexible. We all know that circumstances can vary enormously and that some young people with SEN are ready by the age of 18 to stand on their own and that—partly thanks to the help and support they have received—they are well able to cope without further support. However, others mature later and need to be given extra help and support. Indeed, they often need to take longer, as the noble Baroness, Lady Cumberlege, indicated, over the process of learning and acquiring skills and qualifications. The Minister agreed with those arguments and stated very clearly in his response that the provision of continuing support was not a matter of age but of whether the young person concerned was ready to move into adult life. He was not prepared to move initially in Committee but he said that he was very willing to meet us. The amendments that he has introduced today very largely meet the points that we made then and show that he has very much heeded those arguments. The new wording introduced today meets our requirements.

The first of the two key amendments is Amendment 34D to Clause 36. The wording,

“have regard to his or her age”,

will be changed to,

“consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training”.

In Amendment 39B to Clause 44, “his or her age” will be omitted and the words,

“whether the educational or training outcomes specified in the plan have been achieved”,

will be inserted. As the revised wording implies, the clear intention is that local authorities should be flexible in their approach, and should above all consider whether the young person has reached a point where they can do without the extra help and support that an EHC plan would give them. It is clear from the various case studies provided to us by those who are anxious to see the wording changed, that many young people need and will benefit from this flexible approach. I again thank the Minister and the Bill team for their readiness to listen to our arguments and to make these changes.

However, there is some unhappiness among those providing education and training to over-18s with special educational needs about the current wording of the draft code of practice. In particular, they think that there is a degree of inconsistency in it. At some points the draft code rightly emphasises—as the wording of the amended Bill does—the needs of the individual, whether the outcomes specified in the EHC plan have been achieved and whether the young person is ready to enter and cope with adulthood. At other times the code seems to point to the cliff edge—that once a young person reaches the age of 18, it is no longer necessary to maintain the plan. Could the Minister and his officials, having now amended the Bill, make sure that the code of practice fully reflects the amendments that we have made?

In general, I reiterate how very grateful those for whom I have been speaking in relation to these issues and I are to the Minister and his officials for listening to us, and for amending the Bill.

[Baroness Howarth of Breckland]

My Lords, I add my thanks and make two brief points. First, this will convey a message to the young people themselves. It is not often that legislation matters to the recipients so directly in sending a message. Transition is a very difficult time for people with special educational needs and severe disabilities. Added to all the difficulties that they have of movement of placement and, often, of changes to the personnel involved in their care, has been the suggestion that their age mattered. To them, it does not matter to the transition that they will make to the adult world, because they are not like everyone else who is 18; they are all difficult, but certainly not like most 18 year-olds. This will mean that, in the words of the noble Baroness, Lady Sharp, the needs of the individual will be met. That is a really important message.

I am concerned, as is the noble Baroness, Lady Cumberlege, about the link to health and social care, because it simply cannot be avoided. I am sure that there will be issues around the code of practice. If you are admitted to a residential college because you have severe learning difficulties and physical disabilities, combined with the residential placement will be a series of health provisions. That will all be part of the package, so you have to have regard to all that as well. The Minister may say that that will come anyway because commissioning will be expected for that—but this is something that still worries a number of providers and families as well as individual youngsters, who need very specialist healthcare in their placements and are concerned that that might not continue beyond their 18th birthday, even if their education does.

[Lord Pearson of Rannoch]

My Lords, I rise briefly to speak to Amendment 39CA, which has been put in this group. I apologise for tabling the amendment so late in our proceedings and for not taking part in those proceedings so far, or in your Lordships’ consideration of the Care Bill, which has now gone to the Commons. As on many previous occasions, I declare my interest as the father of a daughter with Down’s syndrome, although because she is now 32 that interest is not directly relevant to this amendment.

I tabled the amendment because I was contacted shortly before we rose for the Christmas Recess by some cerebral palsy practitioners who could not see how this Bill ensures continuity of support from child to adulthood for children with learning disabilities—hence this probing amendment, which I do not pretend is perfectly worded. It focuses on Clause 37 of the Care Bill, which deals with continuity of support when an adult moves geographically. It may have been better to focus it on Clause 67 of the Care Bill, which is described in the Explanatory Notes as being designed,

“to ensure no gap in provision during the transition to adult care and support”.

That is what the amendment seeks to secure. I would be very grateful if the Minister could confirm whether that is what Clause 67 does, or if and how that well known gap is closed elsewhere in this Bill or the Care Bill. When he comes to reply, I would be particularly grateful if he could explain what the words,

“or for some other reason”,

mean in Clause 67 of the Care Bill, on page 57, in line 36—and, again, on page 59, in line 1. At first sight, they appear to give wide discretion to a local authority not to meet a person’s needs after it has concluded that he has such needs. If true, that would appear to affect children moving to adulthood as well.

I have discussed this matter with the noble Lord’s officials. I appreciate that it strays somewhat into Care Bill territory, but I would be most grateful for anything that the Minister feels able to say about the position, in plain language. I look forward to his remarks.

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[Baroness Sharp of Guildford]

My Lords, my name is also attached to the amendment. I endorse what has already been said by the noble Lords, Lord Rix and Lord Low, and by the noble Baroness, Lady Hollins.

As currently drafted in the Bill, special educational provision has to be secured by local authorities. In Committee in the House of Commons, the Government tabled an amendment that places health commissioners under a duty to arrange any health provision set out in the plan. It leaves social care as the only element of an EHC plan that is not enforceable. However, if you create an education, health and care plan, it does not make sense if there is no specific duty to provide the social care services for young people set out in the plan. As the noble Lords, Lord Rix and Lord Low, indicated, there is already provision in Section 2 of the Chronically Sick and Disabled Persons Act 1970 for a specific duty to provide social care services for disabled children.

That picks up on a point made by the noble Baroness, Lady Cumberlege, when we were debating the previous amendment, about her worry that there was no enforcement mechanism to make sure that the social care provisions, which need to be integrated with the education and health provisions, are there. That point has been made time and time again by the noble Baroness, Lady Howarth. It is not logical that we have enforcement mechanisms for education and health but none for social care.

[Baroness Howarth of Breckland]

My Lords, I want briefly to say what I have said several times. If you have a package for education and health, you cannot fail to include the social care element. What I am hoping is that the Minister will give the same answer that he has just given on my previous point—that such provision is contained in the Care Bill. Having looked at the progress made in the way that these services are delivered, that Bill will ensure that the social care element can be provided along with the health element. That is really important because the three are inseparable in the provision of services, particularly for very severely disabled young people. I therefore hope that the answer will be that such provision is already there in another piece of legislation.

[Baroness Wilkins]

My Lords, I, too, add my support for the amendment. For this system to be truly joined up, all parts of the education, health and care plan need to be enforceable; otherwise, social care will be, as has been described, the poor cousin—the element within the EHC plan that will be considered to be of least importance. This is of concern to a wide range of children and young people with SEN and disabilities. We know that parents, too, are concerned about this; in fact, more than 1,000 people have written to the Minister on the issue and asked the Government to ensure that social care will be an equal partner in education, health and care plans. I am therefore encouraged to learn that the Government are looking into the issue in more detail. I very much welcome this and look forward to the Minister’s response.

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[Baroness Hughes of Stretford]

My Lords, I support Amendment 40A moved by the noble Lord, Lord Rix, and colleagues. We supported him on this in Committee and it would still be our first preference as it would add health and social care provisions to the list of matters in respect of which children, young people and families could appeal to the First-tier Tribunal.

This was first moved in Committee by the noble Lord, Lord Storey, as he just reminded us. I recall that he subsequently said, as he has just done so, that he was unsure as to the feasibility of this approach in terms of the technicalities. For that reason, because we may not be able to evaluate those technicalities at this point, we have tabled Amendment 40B, which I will refer to in a moment. I do not know if the comments of the noble Lord, Lord Storey, mean that he would support that amendment but it has the intention of giving the Government time to resolve whatever the issues are.

As other noble Lords have said, the issue is simple: the Government want to establish an integrated system for meeting better the needs of disabled children and those with special educational needs. That integration would be at the point of assessment and planning education, health and social care. However, as the Bill stands, that integration is blown apart at the point of appeal. As we have heard, parents and young people would potentially have to go through three different routes of appeal simultaneously for the three different elements of their plan. Like the noble Lords, Lord Low and Lord Rix, I sense that behind this is the considerable resistance from the Department of Health and the Department for Communities and Local Government to any change.

Having previously been a Minister for some time, I feel quite strongly that agencies should bend for the benefit of families. Families should not be imposed with the burden of mobilising three bureaucratic systems that just happen to exist. It is the job of all of us, particularly the Government, to make those agencies bend, albeit by negotiation and discussion, to make the system work for the people that we are here for.

In a letter to noble Lords, the noble Lord, Lord Nash, said that the tribunal is only for special educational needs, and that, as we have heard:

“There are established routes of complaint about social care through the local authority complaints procedures”,

and, for health, to the health complaints procedure and the health ombudsman. That is not adequate, even if local authority and health appeals systems were simple—and they really are not, even for a Member of Parliament. I see the Minister for Children at the Bar and I am sure he will have tried to mobilise those complaints procedures on behalf of his constituents. It takes for ever, it is labyrinthine, it is completely not transparent and it is very bureaucratic. The idea of parents doing that on three fronts at once is simply unimaginable. There should be a single point of appeal and we support Amendment 40A.

However, should that not prevail tonight and the Government not accept it, we have tabled Amendment 40B which would require the Government actively to seek a way to secure a single point of appeal and to report back to Parliament within a year. That would keep the possibility alive. It would require the Government to do what they have not done and maybe have not had time to do so far: namely, to find a way to make this work for parents and families, to take on the resistance of those agencies and, if necessary, to change the law to establish a single point of appeal.

I am afraid that I do not share the optimism of the noble Lord, Lord Storey, that without anything done this evening there will at some point in future be a single point of appeal. I was constantly surprised and depressed by the inability sometimes to change some of our big public organisations. Without the drive and initiative from this and the other place, I do not think that will happen. I hope the Minister will take that on board.

[Baroness Howarth of Breckland]

My Lords, I support Amendment 40A but particularly Amendment 40B. I agree absolutely with the principle of Amendment 40A but believe that the complexities that need working through to get a single point of entry are so great that we need some sort of driving project.

However, I sincerely believe that we need that single point of entry. Everyone has said how difficult it is for families to negotiate the different kinds of tribunal. I remind noble Lords that these families are struggling with children with severe disabilities. One thing they do not have is time. If you have a disabled child, it takes three times as long, if not more, to do anything, so you are immediately short of time. These negotiations then cut into what time you have. You are also short on emotional energy. If you have been through any sort of tribunal—I have been through a few in my time in a number of different positions—you know the emotional energy that it takes. Disabled children drain emotional energy, much as you love them.

The other thing is that the information you need for the different points of entry is extremely complex. Many families are poor, have not had educational advantage and do not always have the help of someone to take them through the information to enable them to understand it. Were the Government to achieve one different kind of tribunal, perhaps an independent tribunal, it would be more efficient and more economic, because there would be fewer people involved and less time used up.

I have to say that no Government have achieved that yet. No Government have managed to bring health, social care and education systems together. It would be a real triumph were this Government able simply to take a project through to consider the issues and complexities involved and what would be possible to make life so much easier for families who are already struggling emotionally and with their time in trying to care lovingly for a disabled child.

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.