Children and Families Bill

Baroness Lister of Burtersett Excerpts

Wednesday 23rd October 2013 Grand Committee

I ask the Minister at the very least to include this duty in the code of practice accompanying the Bill and to ensure that the necessary measures are put in place so that the significant demand from families with disabled children for inclusive and accessible services is met.

[Baroness Lister of Burtersett (Lab)]

I rise to speak in support of Amendments 65D and 219. As the noble Lord, Lord Low, said, Amendment 65D was a recommendation of the Joint Committee on Human Rights. I am very grateful to him for moving it so ably. There are really no more arguments to put, because he put all the key arguments. Does the Minister accept that the amendment avoids the crude binary distinction between inclusion and specialism that the Government understandably wish to avoid? If he does, will he accept the recommendation? If he does not accept it, is there some other wording that he would accept that would enable the principle of inclusion to be put in the Bill? As the noble Lord, Lord Low, said, it is an important principle.

The Joint Committee on Human Rights also gave its support to Amendment 219. It is a broader amendment than the amendment recommended by the Joint Committee. UNICEF’s The State of the World’s Children 2013: Children with Disabilities report emphasises that an accessible environment is essential if children with disabilities are to enjoy their right to participate in the community. The right to participate in the community is fundamental to citizenship. I am sure every noble Lord in this Room believes in the equal and full citizenship of disabled children. Therefore, I hope the Government will be able to accept this amendment.

[Baroness Brinton]

My Lords, I declare an interest as a trustee of UNICEF. I, too, am delighted to be speaking in favour of Amendment 219, which can bring about the transformation of education—much of our emphasis today has been on education—and, importantly, health and social care services, which is needed to make them truly inclusive for families with disabled children.

I strongly believe that the starting point for looking at the reforms to SEN in this Bill should be that a disabled child has just as much right as every other child to be involved in their community, to be visible in their own community and to have the same opportunities as their non-disabled peers. Despite some very welcome reforms to support for disabled children and children with SEN in the Bill, I fear that the right of disabled children to participate in their community will not be sufficiently realised through the Bill. This concern is shared by UNICEF and the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, noted.

There is compelling evidence that families with disabled children currently encounter huge difficulties in accessing support in their community. Indeed, Scope’s recent Keep Us Close report found that a mere 14% of families with disabled children said they could get all the support they needed in their local community. Therefore families which already face immense challenges on a daily basis more often than not encounter a closed door when it comes to ensuring that their children enjoy the same opportunities as other children.

The Government previously stated in Committee on the Bill in the other place that there are already duties in place to ensure that appropriate provision is made for children and young people with special educational needs and disabled children and their families. However, such duties are clearly failing to achieve their intended purpose. Although the Equality Act 2010 requires organisations to be proactive and responsive in ensuring that the public services that they provide are inclusive and accessible, the reality is that services for disabled children are often developed, planned and commissioned separately from other community services, and consequently miss more strategic opportunities to create joined-up support and a more inclusive society. Parents are confronted with local activities and services that are inaccessible or a lack of support services to enable disabled children to join in with local activities such as youth groups or even simply playing in the park with their peers.

The Government need to set out a clear strategic direction and create a strong imperative for local authorities to focus on accessibility of local services, and that is exactly what the amendment would do. Although a number of local authorities undertake excellent work alongside families with disabled children to ensure that their needs are met by mainstream services—notably Suffolk, Leeds and Blackpool—not all local authorities are as progressive. Many local authorities and voluntary organisations want to provide more inclusive and accessible services, and the amendment would help to give them a chance to do that.

Such a duty on local authorities and NHS bodies would not have to be burdensome. Disabled children and those with SEN more often than not do not need hugely different or specialist services. With small changes to an existing service, we can make them accessible and inclusive for disabled children. It is not about providing more and separate services, but, rather, targeting current provision in the most effective way.

Indeed, making services accessible and inclusive for disabled children is just as much about changing attitudes as it is about making physical adjustments. It is about breaking down many of the fears and misconceptions about what inclusion means and ensuring that services see children simply as the individuals who they are—forcing services to think more creatively about how they can meet the needs of families with disabled children and allow the 1.7 million disabled children and children with SEN to reach their potential.

--- Later in debate ---

On the point made by the noble Baroness, Lady Lister, about presumption, the presumption of mainstream education already puts the principle of inclusion in the Bill. The code of practice subsumes the currently separate inclusive schooling guidance, and I am of course happy to liaise with noble Lords on the wording of the code.

[Baroness Lister of Burtersett]

Before the Minister moves on, I would be grateful if he could answer my question whether he accepts that the recommendation from the JCHR, as encapsulated in Amendment 65D, avoids the false binary between inclusion and specialism. To be honest, I am still not really clear why there is so much resistance to putting the principle of exclusion explicitly in the Bill.

Children and Families Bill

Baroness Lister of Burtersett Excerpts

Wednesday 9th October 2013 Grand Committee

I emphasise that the agencies that support this amendment are not seeking some idealised version of a perfect ethnic, racial or cultural match. However, they recognise that it is essential for a child with that background to be placed in a family with knowledge, understanding and networks that will enable the child to feel that they have a place in the world and where their inevitable curiosity about their cultural heritage will be recognised and engaged with. Unfortunately, I am afraid that love on its own is not enough in these circumstances.

[Baroness Lister of Burtersett (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Hamwee]

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

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

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

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

Children and Families Bill

Baroness Lister of Burtersett Excerpts

Tuesday 2nd July 2013 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, as other noble Lords have observed, there is much to welcome in this Bill, even if it has to be read in the context of children and families, particularly those on low incomes, carrying the main burden of austerity and economic and social policies. This is clearly demonstrated by the Office of the Children’s Commissioner’s child rights impact assessment of Budget decisions, which warns that the best interests of children are not being treated as the primary consideration in the design of fiscal measures relating to welfare benefits, tax credits and taxes.

As a member of the Joint Committee on Human Rights, I shall focus on three of the issues raised in our report on the Bill. First, on the reforms to the Office of the Children’s Commissioner, the committee has welcomed them as significant human rights enhancing measures. However, despite the changes made in response to our pre-legislative scrutiny, some concerns remain. The committee recommended that the commissioner’s primary function of promoting and protecting the rights of children should be explicitly defined with reference to the rights set out in the UN Convention on the Rights of the Child, rather than the commissioner simply having to have regard to these rights. This stronger formulation would be in line with the recommendation of the Dunford review, mentioned by the noble Viscount, Lord Eccles.

The committee also underlined the importance of the commissioner’s independence. The recent UNICEF global study of independent human rights institutions for children stresses:

“Independence is the defining feature of human rights institutions for children”.

The degree of independence is pivotal in determining their success or failure. At the same time, independence is also their most fragile quality. UNICEF identifies sufficient and sustainable financial resources as key to independence.

While the Bill enhances the commissioner’s independence, there are very real concerns that it will not have sufficient resources to fulfil its enhanced duties in a way that ensures its compliance with the Paris principles, which govern international human rights bodies. In a digital age it is crucial that an organisation’s independence is signalled by its website. At present that is not the case, despite protracted negotiations. The JCHR has urged the Government to resolve this issue swiftly, and I would welcome the Minister’s assurance that it will do so.

There are also other important ways in which the office of the Children’s Commissioner must be strengthened. These were raised by the Alliance for Reform of the Children’s Commissioner, and no doubt we will explore them in Committee. For example, there is a case for extending the definition of vulnerable children for whom the commissioner is required to have particular regard to include separated children who are seeking asylum, children who have been trafficked and children in custody.

Turning to Part 1 of the Bill, the Joint Committee recommended that Clause 1 be amended to make more explicit the Government’s intention that a fostering for adoption placement does not take priority over a placement with family and friends, where that is the most appropriate placement available. I hope this is what the Minister had in mind when making the welcome assurance in his speech. I hope he can reassure us on that.

The Joint Committee also questioned the evidence base for removing any requirement to give due regard to a child’s ethnic, religious, cultural and linguistic background in making decisions about adoption. The danger is that without any such reference, due regard might not be paid to these factors, which would be incompatible with Article 20(3) of the UNCRC. The committee therefore recommended that these considerations be added to the checklist to which local authorities are required to have regard. This was also recommended by the Select Committee on Adoption Legislation.

Finally, I wish to speak about the shared parental leave provisions. At Third Reading in the Commons the Minister commented that these provisions have,

“not had the same prominence or debate”,

as other parts of the Bill. She suggested that this is,

“perhaps a mark of the remarkable consensus on them in general”.—[Official Report, 11 June 2013; col. 293.]

I am sorry to break that consensus. I agree that there is a consensus around the goal of encouraging and enabling fathers to play a greater caring role in the first year, and of achieving the necessary culture change for this to happen. However, having willed the end the Government have proved too timid to will the means, through a period of leave reserved for the father on a “use it or lose it” basis. As the Government pointed out in their original consultation on modern workplaces:

“International evidence suggests that fathers’ usage of parental leave is higher under schemes that offer them targeted or reserved leave as opposed to just making shared leave available to the father”.

This is somehow forgotten in the otherwise very thorough impact assessment. As it is, the impact assessment anticipates a take-up rate by fathers of shared parental leave of a mere 2% to 8%. This is hardly enough to achieve a culture change or a real shift in the division of caring responsibilities between fathers and mothers, which I believe to be essential if we are to achieve true gender equality. The evidence cited in the impact assessment suggests that this would have a positive long-term effect on children and young people. The Fatherhood Institute has dismissed what is proposed as,

“a re-naming of the existing parasitic Additional Paternity Leave (i.e. transferable Maternity Leave) with a few ‘tweaks’”.

This may strike noble Lords as a tad harsh, but it makes an important point. A father's right to parental leave will be dependent upon and mediated by the mother. That is not a genuine independent right.

The Joint Committee welcomes the provisions as representing progress towards the implementation of the obligation set out in Article 18(1) of the UNCRC to take steps to ensure recognition of the principle of the “common responsibility to parenting”, but it also expresses disappointment that the Bill does not make the more ambitious provision for shared parental leave that was foreshadowed in the modern workplaces consultation. I know that the Government have said that they will keep this matter under review and that there are powers in the legislation to extend paternity leave and for it to be taken in non-consecutive periods. Can the Minister clarify whether this means that it could be taken at any point during the period covered by shared parental leave? Despite these powers, I still believe that this is a step backwards from the enlightened proposals in the original consultation document. Another step backwards is the absence of any provision for part-time leave, even though this was proposed in the original consultation. As the charity Working Families points out, part-time leave and part-time pay may have significant benefits for families, particularly those on low incomes who would like to extend the time they can spend at home, but cannot afford to have no income.

I hope that we will be able to give these and related matters rather fuller consideration than in the Commons, and that we will be able to rectify at least some of the Bill’s weaknesses as we come to scrutinise this important piece of legislation.