Children and Families Bill

Debate between Baroness Jones of Whitchurch and Baroness Butler-Sloss

Wednesday 6th November 2013 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I will comment briefly on the amendments and support the noble Lord, Lord Addington, and other noble Lords who have spoken this afternoon. As ever, the noble Lord, Lord Addington, made a very powerful case for quality teaching to identify children with dyslexia and all other specific learning difficulties. It is important that we broaden it and do not just concentrate on the—very important—needs of children with dyslexia.

In earlier debates on the Bill, and again this afternoon, we have stressed the importance of earlier intervention. The noble Lord, Lord Storey, has just done that again. It is important that we identify children at the earliest opportunity so that we can give them the support they need to maximise the opportunities that their education can give them. These amendments clearly build on that theme. However, for early intervention to take place consistently, all teachers should be trained in the technique of spotting where it might be necessary. They need to be aware of the range of support mechanisms that are effective and can make a difference. This cannot be left to chance or to some teachers developing a personal interest in SEN, which is, all too often, what happens at the moment.

For each teacher who is unaware, or fails to act, another child’s life chances are blighted. We very much agree with the mandatory module in teacher training. Leaving it to individual schools to provide the knowledge and skills for teaching staff will leave it too late, and we believe it will result in piecemeal provision if we proceed on that basis. Sorting this provision out is crucial to the success of all other aspects of the Bill when it comes to SEN. If we do not get teacher training right, all the other aspects of support that we are talking about here will fall at the very first hurdle.

We also agree with the proposal that the SEN co-ordinator should be a qualified teacher who has been trained in SEN and specific learning difficulties, and we were pleased that the Minister has now acknowledged that the co-ordinator should be a qualified teacher. These high-level skills are crucial to ensure that the school properly focuses attention on the needs of specific groups of pupils, as specified in the new Ofsted framework. It is an interesting development that, with the Government’s new-found faith in unqualified teachers, special educational needs co-ordinators will be the only posts in a school required to be qualified teachers, but I slightly digress.

This leads to another issue, which is that if the Minister agrees with the amendments with regard to teacher training modules and the status of school SENCOs, we are faced with a considerable knowledge deficit among existing teachers, both qualified and unqualified. What further steps do the Government intend to take to ensure that training for existing teachers and, indeed, existing SENCOs can meet our expectation of early intervention and action? How can we be confident that their knowledge of the latest physical and technical equipment is kept up to date if we are focusing just on newly qualified teachers and new training for SEN teachers? I am echoing the points made by other noble Lords, and I hope that the Minister will be able to address the issues.

[Baroness Butler-Sloss]

When my dyslexic granddaughter was identified as such in her excellent primary school, it sent someone out to learn about it because there was no one in the school who had any idea of how to deal with dyslexia. It was an excellent primary school in north London, Eleanor Palmer Primary School, for which I have the highest respect. I wonder how many schools, if they had a dyslexic child, would take the trouble to send somebody out to learn. If a school as good as that did not have anyone who understood it, what is going on? It seems to me that these amendments are extremely important.

Children and Families Bill

Debate between Baroness Jones of Whitchurch and Baroness Butler-Sloss

Monday 21st October 2013 Grand Committee

[Baroness Butler-Sloss]

I do not believe that I have the right now to withdraw my amendment because it was grouped with the earlier amendment. I make one point: it is not the sophisticated countries that have signed the Hague convention about which I am concerned but the unsophisticated countries, some of which are in South America, the Far East, parts of the Indian subcontinent and the Middle East. Those are countries where it may not be as easy to explain to them what “arrangements” means as it would be to France or Germany.

[Baroness Jones of Whitchurch]

I have to say I was beginning to feel very disappointed in the Minister’s response until he said that maybe we could meet—and I am very happy to take up his offer—because I felt that he was not really addressing the concerns that have been raised. They are not just the concerns of non-lawyers like myself or my colleagues; they are the concerns of some fairly major players in this sector including, as I said, the Family Law Bar Association and the Children’s Commission for England, while obviously the noble and learned Baroness, Lady Butler-Sloss, is an expert in her own right. This is not a political point but a practical one: it is about what is in the best interests of children and what can best protect them in international custody disputes. As I understand it, “rights of custody” has a particular resonance and respect around the world, and I am not sure that the new phraseology that we are putting in its place does that. I still need to be persuaded of all that, but maybe we can do that in a meeting with the Minister. I will happily take up his offer to explore it further in that context. I therefore beg leave to withdraw the amendment.

Children and Families Bill

Debate between Baroness Jones of Whitchurch and Baroness Butler-Sloss

Wednesday 16th October 2013 Grand Committee

[Baroness Butler-Sloss]

My Lords, I shall speak also to Amendments 47 to 52. Despite the number of amendments, this is about one very short point: that in Part 2 of the Bill, which at long last we are getting to, Clause 10 is headed,

“Family mediation information and assessment meetings”.

These meetings are required before a relevant family application is made to the court.

I say at once that I am entirely supportive of the Government’s approach in trying to get parents to agree on their children and to get those who have had failed relationships to agree on how to dispose of any cases they may wish to bring. The problem is the word “mediation”. I have heard from various sources, particularly from lawyers, and one has to bear in mind that there is no longer legal aid in private law cases. Therefore, both parties will be litigants in person and one quite simply has to recognise that we are talking about people who have parted, some of them in extreme acrimony, and all with the real trauma of a failed relationship. They would not be in the family court if there were no failed relationship.

Many of them, I think the majority, are very sensible about making the arrangements that have to be made after their relationship is over, but there are some who need some help and they will not get it from lawyers any more. There is also a small minority, perhaps no more than 5 %, who absolutely cannot agree on anything and take their failed relationship, covered in acrimony and hate for each other, into the arena of the family dispute in the family court. They fight over the house, they fight particularly over the children and they use the arena of the children to fight through their failed relationship. Sitting as a judge, as I did in this area for 35 years, I can tell you how many acrimonious failed relationships came through my hands.

For a minority of people who are brought to a meeting, which is a requirement before you go to court, mediation is like a red rag to a bull. They absolutely will not accept it, but they will have to accept an information and assessment meeting, which is thoroughly sensible. The word “mediation” may well mean that a number of people will refuse to go to the meeting. They are not going to meet the other party or agree on anything and, therefore, they will not go.

All that I am asking for in this long list of amendments is to take out the word “mediation”. I say to the Minister that of course one expects and hopes that the information and assessment meeting would lead to mediation, probably in the same meeting, if it is possible to achieve, but you will not want to stop the ability to give information and assess what is going on by imposing the stumbling block of the word “mediation”. I beg to move.

[Baroness Jones of Whitchurch]

My Lords, we have Amendments 47, 50 and 52 in this group. I have listened carefully to what the noble and learned Baroness has said in introducing her amendments, and have some sympathy with the points she makes, but we are approaching the issue in a slightly different way.

We accept that mediation is not always appropriate or of sufficient quality but we support the central thesis in Clause 10 that parents should attend mediation before making a court application. We believe that there are clear advantages, particularly to children, in avoiding the adversarial nature of court proceedings wherever possible, but accept that there will be exceptions.

Our first amendment simply adds flexibility to the clause to ensure that where the court considers it unreasonable families are not required to attend mediation, information and assessment meetings. While we believe that mediation, and ADR more generally, can be very useful means of resolving disputes, they are not appropriate in every type of situation—for example, in cases of domestic violence or child abuse. We are therefore proposing amendments for making clearer the process for deciding on exemptions whereby you do not have to be involved in mediation.

This point was picked up in David Norgrove’s family justice review. At the time, he said:

“There would also need to be a range of exemptions for those for whom an application to court was urgent, or for whom dispute resolution services were clearly inappropriate at the outset. The regime would allow for emergency applications to court and the exemptions should be as in the current Pre-Application Protocol”.

When these issues were debated in the Commons, the Minister stated that the Government had invited the Family Procedure Rule Committee to draw up rules specifying areas where exemptions to the proposed procedure would be appropriate, including domestic violence. The Minister also identified at that time other areas where exemptions might be relevant. These included: a need for urgency; where there is a risk to the life, liberty or physical safety of the applicant or their family; when any delay would cause a risk or significant harm to a child; or where a miscarriage of justice might occur. At the time, we welcomed this commitment. However, we requested that the draft rules be made available to Parliament before scrutiny of the Bill is over. We have now received the letter and its attachments from the noble Lord, Lord McNally, which again states that the Family Procedure Rule Committee will be invited to make rules on these matters. Given that we still have not seen the rules, we ask the Minister again: when will these be made available? How can we be expected to judge whether this provision is sufficient to address our concerns in their absence?

Our second two amendments in this group would insert a definition of an “approved mediator” as someone who satisfies defined training and quality standards assurances and would specify that a mediation, information and assessment meeting would always be held with an approved mediator. These amendments originate from concerns expressed to the Justice Committee in pre-legislative scrutiny that the quality of mediators is often far too low. They tie in with the concerns we have just touched upon: that mediators might have to screen for domestic abuse and safeguarding concerns, which require specialist skills. For example, the Children’s Commissioner for England has highlighted research showing that around 50% of all private law cases involve domestic violence or child abuse. For this reason, it is crucial that mediators are trained and skilled in spotting these issues. It is also important that mediators are trained to listen to and draw out the voices of the children and young people involved.

When this was discussed in the Commons, the Minister said that he had asked the president of the Family Division to revise the existing pre-application protocol to make it explicit that family mediators must be approved by the Family Mediation Council. He said that meant that they would also have to adhere to the code of practice of that council. However, we do not believe that the provision in the code of practice is strong enough. We emphasise again that concerns have been raised about the quality of mediators, even working under this code. We would prefer that safeguards be set out in the Bill.

Although we agree with the aim of the clause and welcome the provision as far as it goes, I hope that the Minister will understand our ongoing concerns and agree to give further consideration to incorporating the additional safeguards set out in our amendments.

Children and Families Bill

Debate between Baroness Jones of Whitchurch and Baroness Butler-Sloss

Wednesday 9th October 2013 Grand Committee

[Baroness Butler-Sloss (CB)]

My Lords, I have a considerable number of interests that I need to declare, not all of which I have to say I can remember. I am a governor of Coram, a patron of BAAF and of PAC, a patron—I think—of TACT and a patron of the Grandparents’ Association. I am very involved with Barnardo’s, the NSPCC and probably many others. I was also chairman of the pre-legislative and post-legislative scrutiny committees.

I strongly support the Government on the Bill, which in principle is an excellent one. There are, however, as one would always imagine, certain points that need both elucidation and change. Perhaps I may also add how delighted I am with the extra resources that have now been offered by the Government toward the adoption process and post-adoption support. There is an area about which I wish to speak in this debate and that is Clause 2 of the Bill, where it is intended to repeal Section 1(5) of the Adoption and Children Act 2002.

The opinion of the adoption committee that I chaired was that it was right to start with the removal of the words from subsection (5). This is an issue of ethnicity—an issue of race, culture, religion and language. In Clause 2, the Government are removing it entirely from the 2002 Act. That is a step too far. In paragraphs 57 to 83 of the adoption report, we said—putting it shortly—that we agreed that the Government were right to take it out as a separate subsection of the 2002 Act. It was given too great prominence. The evidence that we received as a committee was to the effect that there was a time when social workers elevated subsection (5) to inappropriate heights and therefore they were trying to match in colour in particular where it was not appropriate and moving children from very good families who were not of the same colour, race or background. However, we also had evidence, both from social workers and from the adoption agencies, that that problem had largely receded; it had been far less obvious in recent times and there was a counterdanger that, if it were taken out altogether, the social workers who cared too much about it when it was in would care equally when it was out. They would say, “Now that it’s not in, we have to disregard it. We must not consider race, ethnicity, language, religion or culture”. That is an equally important danger. We had evidence from the social workers and the agencies that there are social workers and other people out there who might take that view. It is a danger and one that must not be disregarded.

We also had informal evidence from children; we had a group of children who had been adopted and a group of children who were looked after who came to talk to me and one or two other Peers at the request of the then Children’s Rights Director. They were extremely interesting groups of children, ranging in age from about seven or eight to about 19. The young ones were very vocal, and at least two of them said to us that the question of ethnicity was extremely important to them, and they were worried about being placed—or the possibility of being placed—with someone who would not understand their background. To me, this was very powerful evidence from the horse’s mouth. I am very concerned about the Government keeping this clause in the Bill, when in fact we made it very clear in our report how concerned we, as a committee, were. Our proposal was that it should not be set out on its own, where it has too important an effect, but in among other matters that have to be considered under Section 1(4) of the 2002 Act.

If my amendment were accepted, Section 1(4)(d) of the Act would require the court or agency to have regard to, “the child’s age, sex, background, religious persuasion, racial origin and cultural and linguistic background and any of the child’s characteristics which the court or agency considers relevant”. It is neatly packaged into a number of other matters.

As I understand it, the Government are saying that “characteristics” includes that. It does in a sense but, unless you highlight the relevant points somewhere, there is a great danger that they will be overlooked. If you look at subsection (4) it is interesting to see the various points that are spelt out because a great many of them could be covered by one word or sentence, but the legislators of the day thought it necessary to explain some of them. I urge the Government to think very carefully about including, neatly packaged in subsection (4)(d), those words as part and parcel of a larger package of what the social workers should be looking at. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, our Amendment 12 is on the same issue and a similar wording to that moved so eloquently by the noble and learned Baroness, Lady Butler-Sloss. We very much support the argument that she put forward and the care with which the adoption Select Committee considered this matter and other issues.

As the noble and learned Baroness pointed out, under the Children Act 2002, the court and adoption agencies must under current legislation give due regard to a child’s religious persuasion, racial origin, culture and linguistic background when making decisions. The Bill removes that wording, but we continue to consider that these are important factors.

No one wants children to be disadvantaged by delays caused by the search for a perfect match, but the evidence of the adoption committee was that while there had been pockets of poor practice in the past, this is not a widespread problem. Indeed, it heard evidence from organisations such as Barnardo’s, which believed that the current legislation was adequate, and Coram, which also argued that, while there might have been a problem in the past, the situation was improving rapidly. The committee also identified that there were several other factors affecting the placement of black and minority ethnic children, including having fewer prospective adopters, the age of the children being put up for adoption and a failure of social workers to promote their availability. We are concerned that too much of the legislation being put forward on this issue is being based on anecdote and there is in fact a paucity of evidence that the wording in the legislation is the cause of black and minority ethnic children waiting longer for placements.

The general view was that the current legislative wording was not a problem per se. We therefore think that the Government have swung too far in the opposite direction by seeking to remove any reference to ethnicity, religion and culture. That is why we believe that putting these factors in the welfare checklist, along with other considerations, strikes the right and proportionate balance in addressing the issue. It would require agencies to have regard to these factors, but they would not be paramount.

In addition, any change in this area would be in direct contradiction to the UN Convention on the Rights of the Child and, in particular, Article 20 which states:

“Children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language”.

We agree with this principle. It is important that parents understand the identity of their child and that they are able to help them feel at ease with that identity. We cannot be blind or neutral to these considerations. I very much take the point that was made in the earlier debates. We sometimes think that we are talking about babies, but we are not. We could be talking about young people—anything up to adolescents—who have a view about these things. That point was made very eloquently by the noble and learned Baroness in her introduction. They have an identity and they want that to be considered and expressed. There may have been overzealous social workers in the past, but there may also have been adoptions that failed because the complexities of a child’s identity were not properly addressed. It is important to get a balance.

The Government have argued that these issues are taken into account in the general welfare provisions in Clause 2, but in fact Clause 2 does not achieve that. It removes the express duty to give consideration to these factors, but we are concerned, in the same way as the noble and learned Baroness expressed, that withdrawing them completely will send a clear message to those involved in adoption that these factors are no longer to be considered.

In his response to the Select Committee on adoption report, the Children’s Minister argued that specifying ethnicity, language and so on would continue to place excessive emphasis on these factors and would therefore distort the way that they were applied. To be fair to the Minister, when we met him the other day he made a similar point. He said that in order to counterbalance the excessive emphasis, we had to go to the opposite extreme to ram the message home to local authorities and adoption agencies.

We do not consider that that is the right way forward. These are important and sensitive issues. Having the factors on the welfare checklist, balanced with other issues, would allow the flexibility needed to make an assessment of all the child’s needs in the proper context, which would achieve the Government’s stated aim. I look forward to other comments and the Minister’s response but we very much support the point made by the noble and learned Baroness in opening this debate and the eloquent arguments that were put in the adoption report in the first place.