Children and Families Bill

Baroness Northover Excerpts

Monday 18th November 2013 Grand Committee

[The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)]

My Lords, welcome to the 11th day of Committee on the Children and Families Bill. The noble Baroness, Lady Northover, wishes to say a word.

[Baroness Northover (LD)]

My Lords, with the Chairman’s leave, I would like to remind everyone taking part in Committee proceedings today and on Wednesday that these are our last two days in Committee. The usual channels and all those involved are committed to that objective. To that end, we have agreed to sit to target this evening and on Wednesday, if necessary sitting later than our usual rising time by half an hour or so. Today’s target is to complete Amendment 266AZZZA.

[Baroness Hughes of Stretford (Lab)]

Could I just clarify that? I think what has been agreed by the usual channels is that we will sit until 8 pm—that is, an extra half an hour, not thereabouts and not to target.

[Baroness Northover]

I hear what the noble Baroness says and I am sure that the usual channels will also have heard what she says. I will send an e-mail and clarify if need be.

Clause 76: Repeal of local authority’s duty to assess sufficiency of childcare provision

Debate on whether Clause 76 should stand part of the Bill.

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[Baroness Howarth of Breckland (CB)]

My Lords, although I had not intended to speak on this section, I would like to raise one particular concern. Before I do that, I will add my concerns to those of the noble Baronesses raising the issue of repeal under Clause 76. Earlier, before we began the Committee, the noble Lord, Lord McColl, talked to me about whether a particular group of children should be given priority and whether we could find a way of doing that. I said that, if you try that, you will find that almost every group of children that local authorities currently deal with are a priority, because those are the only groups that they deal with at the moment. It is very difficult for local authorities at the moment to move into preventive work or into other areas.

If we have one piece of legislation for adults, which has the duty, and another piece of legislation for children, which does not have it, my great concern is that children will slip down the priority list in this particular area. I am not saying that they will not be protected—that will be followed up—but proper assessment for under-five provision will slip down the priority level. It has to, because that is the only way that local authorities can manage their finances and priority ratings. I hope that the Minister and the Government will look again at this repeal. I think that the way forward is to look at the regulation and the framework and to get that into an accurate package, which would take us forward.

The other area that concerns me—this is a probing question—is those children who have additional needs and who need to be placed in under-five daycare so that their parents can work or develop skills. I am thinking in particular of children with, say, autism or similar developmental issues and am really trying to probe how this fits with the government amendment. At the moment, a local authority may provide funding for a place, but if the parent wishes to make additional payments for an extra quality of service, the local authority will not pay because that would be a mixture of private and statutory funding—even if the organisation providing that service is a voluntary, not-for-profit organisation.

I take some responsibility because I suspect that, in the past, I was one of the people who pressed for the principle of not mixing private and statutory funding, but I do not think I ever saw it coming to a position where, as a parent, you could not give added quality to children in need. The difficulty has arisen because some parents have objected to having to pay—one organisation I know in particular may have to close its doors because it cannot manage the quality of care that they need to provide for these difficult children. This is really a probing question: are the Government prepared to look at mixing or is it an absolutely sacred principle that private and public funding should not be put together? I also support the other the noble Baronesses who put the other arguments so clearly.

[Baroness Northover]

My Lords, this is an important debate about the role of English local authorities in securing early-years provision free of charge for young children and about sufficient childcare. In responding, I will also speak to government Amendment 240R.

The Government are as determined as other noble Lords that parents should have a wide choice of early education and childcare places, and that places are of the highest quality possible. Clause 76 will remove the requirement on local authorities to assess the sufficiency of childcare provision every three years. We recognise the concerns raised by my noble friend Lady Tyler and the noble Baroness, Lady Hughes, and I hope that I can provide some reassurance.

There are two duties on local authorities relating to the sufficiency of childcare: the duty to secure sufficient childcare under Section 6 of the Childcare Act 2006; and the duty to make an assessment of sufficiency of childcare every three years under Section 11 of the same Act, which is what we have just been addressing. The first of these duties is paramount. The duty of the local authority to secure sufficiency of childcare remains in place; it is the other element that we are talking about here. We are clear that local authorities should take steps to ensure that parents can access the childcare they need.

To satisfy themselves that there is sufficient childcare in their area—my noble friend Lady Tyler is right—local authorities do indeed need to collect information on the availability of, and demand for, childcare. Our statutory guidance makes it clear that local authorities should report to elected members annually on the steps they are taking to address any gaps in childcare provision. The annual report should also be made available to parents, allowing them to hold local authorities to account for ensuring that there is high-quality, affordable childcare in their area. The noble Baroness, Lady Hughes, mentioned a simpler annual report. We are more in agreement here than perhaps it may have appeared from our initial discussions. There will need to be an assessment because those kinds of data are required, and there will need to be an annual report.

The decision to repeal the sufficiency assessment—that three-yearly, very lengthy document—was taken after public consultation. The majority of respondents supported the repeal and the proposals that local authorities should prepare and publish an annual report on the sufficiency of childcare. The noble Baroness, Lady Hughes, referred to that consultation and suggested that perhaps we did not ask whether the duty should be repealed. Perhaps I misunderstood her—it looks as if I did not—but the department did indeed ask this. The question was: “Do you support the repeal of Section 11 and the revocation of the supporting regulations?”. That was directly asked of people, and 62% supported it; only 10% said they did not.

The consultation took place between November 2010 and February 2012, and the Government published their response in May 2011; it is available on the Department for Education website. The feeling came through that what was needed was to ensure that there were sufficient places and that too much focus was perhaps going on this rather lengthy document, produced every three years, which required a lot of effort to put together and was not easy for parents to access, and so on.

No doubt in the first place the provision was made for the best possible reasons and I fully understand why it should be there, but the purpose is to try to secure sufficient childcare and to have a mechanism of putting pressure on local authorities to ensure that that happens. That is why the department is in favour of moving to an annual assessment and giving that annual report to the councillors who are accountable. I hope that noble Lords will be reassured.

[The Countess of Mar (CB)]

Perhaps I might ask the noble Baroness to check the dates she gave us for the consultation. It sounds as though the Government’s response came a year before the consultation was complete, if I heard her right.

[Baroness Northover]

The noble Countess is right. As I read that out, I was thinking, “My goodness, that is a long consultation—a very, very thorough consultation”. No doubt I may find that it was not quite like that and, if so, I will inform the noble Countess in a moment. I hope that the substance of what I am saying provides some reassurance.

[Baroness Howarth of Breckland]

It may be my lack of understanding, but I think that the concern is not that the assessment is being changed from the lengthy three-year bureaucratic document, with which I am familiar, but that the statutory responsibility has been changed to regulation. Is that correct?

[Baroness Northover]

Perhaps I may answer the noble Countess, Lady Mar. The consultation went from November 2010 to February 2011—which, I agree, is a much more normal length of time for a consultation.

[The Countess of Mar]

It shows we are listening.

[Baroness Northover]

I am very flattered. I will come back to the noble Countess in a moment very precisely on her point, because obviously it is very important.

[Baroness Hughes of Stretford]

Perhaps the noble Baroness will give way on a point of detail about the consultation. I understood that the Government did not test views on repealing the Section 11 duty. I understand that there were two questions: first, whether to move to an annual sufficiency assessment and, secondly, whether to remove the current Section 11 duty and the associated regulations altogether in one question. An analysis of the qualitative responses that people made showed that many people were very concerned about the current regulations, but they did not express a view about Section 11 as a duty in itself; they were more concerned about the onerous regulations.

[Baroness Northover]

I hear what the noble Baroness says. I have seen some of the responses and she rightly puts her finger on the concern about the document that was produced. Perhaps at the very least we can agree that the three-year assessment that was put in place—no doubt for extremely sound reasons—was not doing what was intended. What we seek to do here is to make sure that we have something that delivers what is required, which is the pressure on local authorities to make sure that they know what the provision is and that it is sufficient. Therefore, moving from three years to an annual assessment is important, as the noble Baroness agrees. We need something which is not so lengthy and dense that by the time it is produced three years later, many of those children will already be in school. The assessment needs to be a little more up to date than once every three years.

[Baroness Hughes of Stretford]

I am grateful to the Minister for her clarification. I think there is agreement on that particular proposal. Perhaps she could address the point that the noble Baroness, Lady Tyler, I and others made: namely, why do the Government want to repeal the Section 11 duty, which we think would send a very negative message to local authorities, rather than simply amend the regulations in the way in which she is describing?

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[Baroness Northover]

I am happy to go through some other comments, which may help address those matters. If I do not adequately address them, I will be very happy to write a letter on all the points.

I have now got my papers in the right order. My noble friend Lady Tyler asked about good practice. The department would be happy to publicise any examples of good practice and local authority annual reports. Through the Children’s Partnership, the department runs a foundation years website which provides a range of guidance and good practice material to support early-years professionals. I also point out to my noble friend Lady Walmsley that the department collects and publishes a suite of data on local authority performance in the early years benchmarking tool. So information is held centrally as well, which helps inform both the Government and local authorities. Local authorities will still need to assess local sufficiency, and these proposals will make it less bureaucratic to do so. I hope that noble Lords will be willing to withdraw their opposition and will be reassured that local authorities will still need to assess the sufficiency of childcare provision and to account for it to elected members.

Government Amendment 240R allows new regulations to be made that affect the way local authorities meet their duty to secure early-years provision for young children. The amendment will allow the Government to impose a requirement on local authorities to meet this duty by funding early-years provision at any provider that meets the quality standards set out in regulations.

The department previously set out an expectation that local authorities should undertake their own assessment of a provider’s quality before funding it to deliver places. It seems to us that it does not make sense for the Government to require local authorities to make quality judgments about providers when Ofsted is undertaking a similar role. The noble Baroness, Lady Hughes, acknowledged that we have duplication here, but she was concerned that Ofsted’s assessments might take a while to take place, would therefore be out of date, and so on. Where local authorities have got concerns about a decline in quality since an inspection, they can make representations to Ofsted, which may inspect earlier than scheduled. Given that Ofsted is in place, however, it seems to us that the duplication did not make sense.

The intention is that in future, where a provider has received a “good” or “outstanding” inspection judgment from Ofsted, it should automatically receive funding from the local authority if a parent wants to send their child there. Currently, local authorities can also require providers to meet a variety of additional local conditions in order to receive funding. Some providers report that local authority improvement recommendations have conflicted with the views of Ofsted and that inconsistent requirements have presented challenges for providers operating in more than one area and looking to expand. This clause also allows regulations to be made that limit the nature of the conditions that can be imposed whenever a local authority funds an early-education place.

The noble Baroness, Lady Howarth, asked about top-up fees for children with SEN. As she pointed out, local authorities have a statutory duty to secure early education free of charge for young children, but she raised an important point. I will write to her on whether fees could be mixed in the way she talked about.

We intend to make regulations that ensure that local authorities will be able to place conditions on providers to ensure that they meet their responsibilities to meet the needs of disabled children, or children with SEN, to keep children safe and use government funding properly. Under the regulations, local authorities will also be able to set conditions that ensure funded places are completely free, so that no parent is denied access to their child’s funded place by having to pay a fee, and places will be delivered flexibly to meet parents’ needs. Of course, the noble Baroness will have noted that they have a particular responsibility to look after children with special needs. One would hope that the provision made would be appropriate and that the parents would not need to be topping up with extra fees. Nevertheless, I will write to the noble Baroness on that.

Local authorities will continue to have an important role to play in helping providers improve the quality of their provision. They will still be able to place conditions on providers judged less than “good”, requiring them to take the necessary steps to address issues raised by Ofsted at inspection. I hope that aspect will also reassure noble Lords.

Taken together, these changes will create a level playing field for all providers across the country. Nationally consistent criteria will make it easier for good providers to expand outside their local authority area and for new providers to enter the market. In particular, it will enable more childminders to deliver places, giving parents greater choice over their childcare options so that they can do what is best for their family. I urge noble Lords to support the government amendment.

I turn to Amendment 240S in the name of the noble Baroness, Lady Hughes. We absolutely share her aim that we should fund early-education places at the highest-quality providers—there is no doubt about that. The research evidence is clear that high-quality provision has the biggest impact on children’s development. Therefore, we are working very hard to drive up the quality of provision, following on from what the noble Baroness did in her role. She will also be aware of the challenges that government encounters in trying to do that, but we are taking that forward very vigorously. We are reforming the regulatory regime, including planning more rigorous and frequent inspections and a greater role for Her Majesty’s inspectors in quality-assuring those inspections.

To improve the skills and knowledge of those caring for and educating young children, we are introducing early-years teachers at graduate level and early-years educators at A-level standard. However, we do not think that enshrining in the Bill a quality threshold for funded places is the best way to achieve this. Placing a quality threshold in primary legislation would reduce the Government’s flexibility to raise the quality bar as the quality of available provision improves. It would also prevent the Government from easily adjusting the standard to reflect changes to the inspection framework; for example, if Ofsted decided to no longer have an inspection category labelled “good”. That kind of judgment is not usually put in primary legislation, as noble Lords will be aware.

I may not have addressed all the issues. I will just see if there are any other things I need to pick up. In answer to the question asked by the noble Baroness, Lady Hughes, about keeping the regulations, the Government’s view is that the statutory guidance is a more proportionate way of supporting local authorities in their sufficiency duty than the regulations, which could be bureaucratic. The guidance is in force and is available on the department’s website. I am happy to write to noble Lords to provide greater detail on that.

The noble Baroness, Lady Hughes, and my noble friend Lady Walmsley asked about funding inadequate providers. Local authorities retain the discretion in extraordinary circumstances to fund inadequate providers. For example, this would allow an authority to fund a provider judged inadequate because of a technicality, such as out-of-date policies that will be speedily rectified. Our guidance is clear, however, that authorities should withdraw funding from inadequate providers as soon as is reasonably practical if they fail for reasons of greater substance than the kind of instance to which I have just referred. I hope that that reassures the noble Baronesses.

I hope that noble Lords will be happy to support the government amendment in this group and will not press their own amendments, and will agree that this clause should stand part of the Bill.

[Baroness Tyler of Enfield]

My Lords, I am very grateful to my noble friend the Minister for her very helpful responses and the very constructive tone in which she gave them. I am also very grateful to other noble Lords who participated in this debate.

I think that there is a large measure of agreement on this issue. We all agree that no one wants unnecessary bureaucratic burdens on local authorities. We all agree that the Section 6 duty to secure the provision is of paramount importance. I think we can all see that having a report once a year rather than every three years is helpful. No one wants lengthy reports. Some of us have seen reports almost like telephone directories that do not seem to help very much. Those are the things on which we are all agreed.

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Moved by

[Baroness Northover]

240R: After Clause 76, insert the following new Clause—
“Discharge of authority’s duty to secure free early years provision
(1) Part 1 of the Childcare Act 2006 (general functions of local authorities in England in relation to childcare) is amended as follows.
(2) After section 7 (duty to secure early years provision free of charge in accordance with regulations) insert—
“7A Discharge of duty under section 7
(1) Regulations may require an English local authority to discharge its duty to a young child under section 7 by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision to which the child is entitled in cases where—
(a) the early years provider is willing to provide it, and(b) the early years provider is also willing to accept—(i) any terms as to the payments which would be made to him or her in respect of the provision, and(ii) any requirements which would be imposed in respect of it.(2) Arrangements made by an authority to satisfy any requirement imposed under subsection (1) may be made with an early years provider or with an early years childminder agency or any other person who is able to arrange for an early years provider to provide early years provision.
(3) The regulations may provide that such a requirement—
(a) applies only if the early years provider is of a prescribed description;(b) applies only if the early years provision provided by the early years provider is of a prescribed description;(c) does not apply in prescribed circumstances.(4) The regulations may provide that arrangements made by an authority for the purpose of complying with such a requirement must include provision allowing the local authority to terminate the arrangements in prescribed circumstances.
(5) In this section—
“early years childminder agency” and “early years provider” have the same meanings as in Part 3;
“parent” has the same meaning as in section 2.”
(3) After section 9 (arrangements between local authority and childcare providers) insert—
“9A Arrangements made by local authorities for the purposes of section 7
Regulations may provide that arrangements made by an English local authority for the purpose of discharging its duty under section 7—(a) may impose requirements on the person with whom the arrangements are made only if the requirements are of a prescribed description;(b) may not impose requirements of a prescribed description on the person with whom the arrangements are made.””

[Baroness Northover]

I beg to move.

Amendment 240S (to Amendment 240R) not moved.

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Moved by

[Baroness Northover]

241: After Clause 78, insert the following new Clause—
“Young carers
(1) In Part 3 of the Children Act 1989, after section 17 insert—
“17ZA Young carers’ needs assessments: England
(1) A local authority in England must assess whether a young carer within their area has needs for support and, if so, what those needs are, if—
(a) it appears to the authority that the young carer may have needs for support, or(b) the authority receive a request from the young carer or a parent of the young carer to assess the young carer’s needs for support.(2) An assessment under subsection (1) is referred to in this Part as a “young carer’s needs assessment”.
(3) In this Part “young carer” means a person under 18 who provides or intends to provide care for another person (but this is qualified by section 17ZB(3)).
(4) Subsection (1) does not apply in relation to a young carer if the local authority have previously carried out a care-related assessment of the young carer in relation to the same person cared for.
(5) But subsection (1) does apply (and so a young carer’s needs assessment must be carried out) if it appears to the authority that the needs or circumstances of the young carer or the person cared for have changed since the last care-related assessment.
(6) “Care-related assessment” means—
(a) a young carer’s needs assessment;(b) an assessment under any of the following—(i) section 1 of the Carers (Recognition and Services) Act 1995;(ii) section 1 of the Carers and Disabled Children Act 2000;(iii) section 4(3) of the Community Care (Delayed Discharges) Act 2003.(7) A young carer’s needs assessment must include an assessment of whether it is appropriate for the young carer to provide, or continue to provide, care for the person in question, in the light of the young carer’s needs for support, other needs and wishes.
(8) A local authority, in carrying out a young carer’s needs assessment, must have regard to—
(a) the extent to which the young carer is participating in or wishes to participate in education, training or recreation, and(b) the extent to which the young carer works or wishes to work.(9) A local authority, in carrying out a young carer’s needs assessment, must involve—
(a) the young carer,(b) the young carer’s parents, and(c) any person whom the young carer or a parent of the young carer requests the authority to involve.(10) A local authority that have carried out a young carer’s needs assessment must give a written record of the assessment to—
(a) the young carer,(b) the young carer’s parents, and(c) any person to whom the young carer or a parent of the young carer requests the authority to give a copy.(11) Where the person cared for is under 18, the written record must state whether the local authority consider him or her to be a child in need.
(12) A local authority in England must take reasonable steps to identify the extent to which there are young carers within their area who have needs for support.
17ZB Young carers’ needs assessments: supplementary
(1) This section applies for the purposes of section 17ZA.
(2) “Parent”, in relation to a young carer, includes—
(a) a parent of the young carer who does not have parental responsibility for the young carer, and(b) a person who is not a parent of the young carer but who has parental responsibility for the young carer.(3) A person is not a young carer if the person provides or intends to provide care—
(a) under or by virtue of a contract, or(b) as voluntary work.(4) But in a case where the local authority consider that the relationship between the person cared for and the person under 18 providing or intending to provide care is such that it would be appropriate for the person under 18 to be regarded as a young carer, that person is to be regarded as such (and subsection (3) is therefore to be ignored in that case).
(5) The references in section 17ZA and this section to providing care include a reference to providing practical or emotional support.
(6) Where a local authority—
(a) are required to carry out a young carer’s needs assessment, and(b) are required or have decided to carry out some other assessment of the young carer or of the person cared for;the local authority may, subject to subsection (7), combine the assessments.(7) A young carer’s needs assessment may be combined with an assessment of the person cared for only if the young carer and the person cared for agree.
(8) The Secretary of State may by regulations make further provision about carrying out a young carer’s needs assessment; the regulations may, in particular—
(a) specify matters to which a local authority is to have regard in carrying out a young carer’s needs assessment;(b) specify matters which a local authority is to determine in carrying out a young carer’s needs assessment;(c) make provision about the manner in which a young carer’s needs assessment is to be carried out;(d) make provision about the form a young carer’s needs assessment is to take.(9) The Secretary of State may by regulations amend the list in section 17ZA(6)(b) so as to—
(a) add an entry,(b) remove an entry, or(c) vary an entry.17ZC Consideration of young carers’ needs assessments
A local authority that carry out a young carer’s needs assessment must consider the assessment and decide—(a) whether the young carer has needs for support in relation to the care which he or she provides or intends to provide;(b) if so, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and(c) if they could be so satisfied, whether or not to provide any such services in relation to the young carer.”(2) In section 104 of the Children Act 1989 (regulations and orders)—
(a) in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) before “(3B)” insert “(3AA),”, and(b) after subsection (3A) insert— “(3AA) Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZB(9).””

[Baroness Northover]

I beg to move.

[Baroness Hughes of Stretford]

I would be grateful if the Minister could clarify the scope and impact of Amendments 241B, in particular, and 273A. This is a genuine question. I have read the note the Minister put out saying that the amendments provide clarification. I am talking about the right amendments, am I not? I beg your pardon; I misheard.

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Moved by

[Baroness Northover]

241A: After Clause 78, insert the following new Clause—
“Duty to support pupils with medical conditions
(1) The appropriate authority for a school to which this section applies must make arrangements for supporting pupils at the school with medical conditions.
(2) In meeting the duty in subsection (1) the appropriate authority must have regard to guidance issued by the Secretary of State.
(3) The duty in subsection (1) does not apply in relation to a pupil who is a young child for the purposes of Part 3 of the Childcare Act 2006 (regulation of provision of childcare in England).
(4) This section applies to the following schools in England—
(a) a maintained school;(b) an Academy school;(c) an alternative provision Academy;(d) a pupil referral unit.(5) In this section—
“the appropriate authority for a school” means—
(a) in the case of a maintained school, the governing body,(b) in the case of an Academy, the proprietor, and (c) in the case of a pupil referral unit, the managing committee;“maintained school” means—
(a) a community, foundation or voluntary school, within the meaning of the School Standards and Framework Act 1998, or(b) a community or foundation special school, within the meaning of that Act.(6) The Education Act 1996 and this section are to be read as if this section were included in that Act.”

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Moved by

[Baroness Northover]

241B: After Clause 78, insert the following new Clause—
“Local authority functions relating to children etc: intervention
(1) Section 497A of the Education Act 1996 (which confers power on the Secretary of State to secure the proper performance of local authority education functions, and is applied to social services functions relating to children by section 50 of the Children Act 2004 and to functions relating to childcare by section 15 of the Childcare Act 2006) is amended in accordance with subsection (2).
(2) After subsection (4A) insert—
“(4AA) So far as is appropriate in consequence of a direction given under subsection (4A), a reference (however expressed) in an enactment, instrument or other document to a local authority is to be read as a reference to the person by whom the function is exercisable.
(4AB) Subsection (4AC) applies if a direction given under subsection (4A) expires or is revoked without being replaced.
(4AC) So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the local authority to which the direction was given.”
(3) In section 15 of the Local Government Act 1999 (Secretary of State’s power to secure compliance with requirements of Part 1 of that Act) after subsection (6) insert—
“(6A) So far as is appropriate in consequence of a direction given under subsection (6)(a), a reference (however expressed) in an enactment, instrument or other document to a best value authority is to be read as a reference to the person by whom the function is exercisable.
(6B) Subsection (6C) applies if a direction given under subsection (6)(a) expires or is revoked without being replaced.
(6C) So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the best value authority to which the direction was given.””

[Baroness Northover]

I think that this is the amendment the noble Baroness was thinking about. I shall speak also to Amendment 273A, which is a technical amendment to bring the substantive amendment into force two months after Royal Assent. These amendments clarify the law in relation to the Secretary of State’s power to intervene in failing local authorities under the 1996 Education Act and the Children Act 2004.

In most cases, as noble Lords will know, government intervention in local authorities rests on the use of non-statutory improvement notices or, less often, on statutory directions to ensure that locally led improvement is effective. There are currently five local authorities in England under statutory direction, and 20 subject to improvement notices. The Secretary of State’s ability to remove functions entirely from a local authority is essential only in exceptional cases of persistent underperformance that put at risk the welfare of vulnerable children over an extended period.

Parliament agreed that those powers were necessary when it passed important provisions in the Education Act 1996 and the Children Act 2004. That legislation allows the Secretary of State to direct that where a local authority fails to perform its children’s services functions to an adequate standard or at all, those functions can be exercised directly by the Secretary of State or by a third-party nominee. For these powers to be exercised effectively, it is essential that the Secretary of State or the third-party nominee can fulfil all the functions required to keep vulnerable children safe and intervene to improve their life chances.

However, although this legislation is in place and its intention is clear, it leaves room for potential legal argument over how the courts would view a direction under subsection (4A). This is because, in introducing the provisions in the 1996 Act and the 2004 Act, Parliament did not clarify in legislation all the powers that are consequential upon those provisions. It is not clear beyond doubt, for instance, whether the family court would feel able to recognise a third-party nominee as if it were a local authority in care or adoption proceedings. There might also be some doubt as to whether the chief inspector had the powers necessary to inspect and report on a nominee’s performance of the local authority’s functions.

We propose, therefore, to clarify the relevant legislation to put these questions beyond doubt. This is important to enable the Secretary of State to intervene not just where the most serious social care failures occur but in the interests of certainty for children who may be taken into care or placed for adoption. In order that these powers can be exercised effectively, the new clause makes it clear that where functions are being exercised directly by the Secretary of State himself or by a third -party nominee, the Secretary of State or his or her nominee would, for example, be able to apply for or be named in care orders under Section 31 of the Children Act 1989; exercise the functions set out in Section 92(2) of the Adoption and Children Act 2002; and exercise certain other court-related functions in the same way that the local authority can. This is clearly the intention and purpose behind the provisions in the Education Act 1996 and the Children Act 2004, but in such an important area that is critical to the safety of children it is essential that there is no room for uncertainty. This new clause therefore clarifies existing powers. It does not seek to expand them.

The amendment also makes it clear that, following a direction that local authority functions be exercised by the Secretary of State or a third-party nominee, other relevant references in legislation to a “local authority” should be read as references also to the Secretary of State or a nominee. For example, in relation to the chief inspector’s inspection functions and powers, such as under Sections 136 to 141 of the Education and Inspections Act 2006, the amendment will ensure that the performance of these functions by the Secretary of State or his nominee should also be subject and open to inspection in the same way as when those functions are performed by a local authority. We do not want to leave any uncertainty over Ofsted’s power to inspect children’s services in whatever form they might be delivered. I beg to move.

[Baroness Hughes of Stretford]

Will the Minister clarify a couple of points about the potential scope and impact of the amendment? I can readily understand what she is saying about the need for any third-party nominee that the Secretary of State appoints to take over the administration of children’s services to be recognised by the courts in any orders for which it needs to apply to protect the safety of particular children. Because these powers have been around for some time and have been exercised in relation to a number of local authorities by this and previous Governments, can the Minister provide an example of any problem that has led to the amendment being necessary?

Secondly and more fundamentally, and because in the reference back to parent legislation it is hard to discern scope and impact, will she clarify what proposed new subsections (6A), (6B) and (6C), mean in practice? I am not clear about why the reference here is to “a best value authority” and whether that means that the powers in the amendment under which the Secretary of State can intervene in a local authority go far beyond applying to a local authority that is failing in the performance of its duty. May it, in fact, be some reference to a local authority that is not achieving best value, according to someone’s criteria?

I know I am not explaining that terribly clearly myself, but it seems that the wording here potentially widens the scope of these powers beyond their use in relation to what the Minister described at the outset as authorities that have failed and have persistently failed. This seems to be a much more generalised category of authority. I wonder whether she could put on record the department’s understanding of this issue in relation to proposed new subsections (6A), (6B) and (6C).

[Baroness Northover]

As the noble Baroness noted, these powers have been there but have not been used. I want to be extremely clear that this amendment speaks only to the very few cases where the capacity of local authorities to improve the quality of their children’s services is so seriously in doubt as to require them to be delivered by the Secretary of State or a third-party nominee. As she notes, we have never had to use this power.

Some examples may help to clarify the point. In the Isle of Wight, we asked Hampshire County Council to take over the delivery of services. In Doncaster, where there were huge problems, we considered using the power, but the council is now working with us to establish a trust that is clearly separate from the local authority. Therefore, the Secretary of State has decided not to remove the council’s statutory children’s services functions, and that will remain the position as long as good and constructive progress continues to be made. In both those cases, the decision was made that it was not necessary to use the powers that we are clarifying here. Nevertheless, given that those powers are there, and that it was envisaged in the 1996 and 2004 Acts that there could be instances where they needed to be used, we feel that there needs to be absolute legal clarity about the full range of powers that Parliament intended.

I re-emphasise that the powers we are talking about here in relation to children’s services would be used only in cases of extreme failure. As I say, not even in the two cases that I have cited, where things were extremely problematic, as the noble Baroness will know, were the powers used.

[Baroness Hughes of Stretford]

Can the Minister possibly write to me about this? I am particularly interested in proposed new subsections (6A), (6B) and (6C). She said that the powers would be used only in cases of extreme failure. Is that extreme failure in the delivery of services or is it failure, on somebody’s definition, to achieve “best value”? In other words, it is not clear whether the reference here to the Local Government Act 1999 and the references to “best value” authorities go beyond failure in service delivery and performance and could actually be a wider and more general definition of a local authority failing to deliver best value.

[Baroness Northover]

Perhaps the best thing would be for me to reiterate that the Secretary of State’s ability to remove functions entirely from a local authority is essential only in exceptional cases of persistent underperformance that puts at risk the welfare of vulnerable children over an extended period. I hope that that reassures her.

Amendment 241B agreed.

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[Baroness Massey of Darwen]

I apologise for addressing my noble friend Lady Jones as my noble friend Lady Hughes throughout my speech. They are not the same person.

[Baroness Northover]

My Lords, we all merge into one after a while. I start by emphasising to noble Lords that the Government believe that children’s centres provide a very important service and have a vital role to play in supporting outcomes for children and families.

I turn, first, to the issue of data sharing. We agree on the importance of information sharing. Clearly, professionals should work together to identify families who are in need of support and offer them that support. Indeed, the Department for Education’s statutory guidance for children’s centres is clear that health services and local authorities should share information, such as live birth data, with children’s centres on a regular basis where doing so enables professionals to work better with one another to provide services for families. Moreover, current legislation makes it clear that information can already be shared where there are local agreements and processes in place that meet the legal requirements about confidentiality, consent and security of information. Naturally, we wish to support information sharing between professionals. In order to encourage this, my colleagues at the Department of Health have undertaken to liaise with NHS England and other partners to promote the sharing of live birth data and to explore the practical issues.

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[Baroness Jones of Whitchurch]

Will the Minister say a little more about the Jo Swinson task-and-finish group? I understand that culture and professional practice were barriers to data sharing, but did any positive recommendations come out of that group that the Government are intending to take forward, or just a list of barriers that make these things more difficult?

[Baroness Northover]

I think it would be best if I wrote to the noble Baroness with further details and copied the letter to other noble Lords, who will clearly be very interested in what the group reported.

[The Earl of Listowel]

My Lords, I thank all noble Lords who took part in this debate. I particularly thank the Minister for her careful, sympathetic and encouraging response. It is good to hear that Councillor Simmonds has been meeting her department with regard to this matter and about the work that has been undertaken through 4Children to circulate information about this. I know that the Children’s Minister occasionally writes to local authorities on important matters. Perhaps this could be kept in mind, especially if we do not make the progress that we hope we will make in this area.

I omitted to pay tribute to Andrea Leadsom MP in my opening remarks. She is chair of the All-Party Group for Sure Start Children’s Centres which produced this report, and she tabled an amendment very similar, perhaps identical, to this in the other place, so she started the ball rolling on this.

The noble Baroness, Lady Massey, talked about information sharing. I remember working in a play scheme five or six years ago. I worked with a boy who was just about to be adopted. We did not know he was going to be adopted. He behaved appallingly, and it would have been so easy for us to come down hard on him because we did not know that he had just come out of care and was moving into an adoptive family. It is so important that people on the front line know what is going on with a family or with a child. How can they react sensibly otherwise?

I take what the noble Baroness says about the culture, the people and things like what is being done for social work. One hopes that the appointment of the Chief Social Worker will give front-line professionals the confidence to share information. Occasionally there are inhibitions about sharing information for legal reasons, and that may apply to some of this information; I am not too sure. I will look into that, and if it is an issue, I will come back to the Minister. I am grateful to the Minister for what she said. I will take it away and think about it. I beg leave to withdraw the amendment.

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[Baroness Benjamin (LD)]

My Lords, I, too, strongly support the amendments of my noble friend Lady Walmsley.

I will speak first to Amendment 243. For many years I was a school governor. One of my roles was that of child protection officer, for which I had to undergo training provided by the local council. These training sessions were attended by people across the borough, with responsibilities not just in schools but in community centres, Saturday schools and churches. At one such session I realised the worrying extent of superstition in these latter environments, involving children who, it was believed, were possessed by evil spirits.

The protection officers who also attended the training asked for better policies and advice to be put in place in establishments other than schools. They highlighted the need for training to protect children from what they believed was serious physical and mental abuse, driven by traditional superstition and sometimes religious beliefs. This abuse punished children who showed strong will or who misbehaved, perhaps because of learning difficulties, or because of conditions such as autism or dyslexia, or undiagnosed conditions which parents and families might not have been aware of or familiar with.

I also support Amendment 246. It has been brought to my attention, for some years now and from people across the country, that many children have had to endure corporal punishment and beatings in part-time educational institutions if they do not remember or learn work set for them, or achieve what is expected of them. This cruelty has to stop. We must not ignore any plea to safeguard all children, no matter where they are, what communities they live in, or where they come from. I therefore wholeheartedly support these amendments and hope that the Minister will put in place measures to protect these unfortunate children who have had to endure such awful and highly illegal abuse and cruelty.

[Baroness Northover]

My Lords, these amendments both relate to safeguarding specific groups of children. I will turn first to Amendment 243. While of course we believe that people should be free to express their views, I assure my noble friend Lady Walmsley and others that what is absolutely not acceptable is where expression of belief is intended to or causes harm to a child. My noble friends have made very powerful cases. Sometimes children are harmed by their parents or others. As a society we must be satisfied that we have the criminal offences to prosecute those who commit such behaviour. The Government have a key role to play, as do voluntary and other organisations working in the sector. We commend them for their work in shining a spotlight on this problem.

It is essential to raise awareness among the relevant communities and faith groups, and also among social workers and other practitioners—as the noble Baroness, Lady Howarth, said—who may come into contact with families where such accusations have been made. It is only through awareness of the potential threat posed to a child’s well-being by such accusations that families, communities and practitioners can be empowered to prevent harm from taking place and, failing that, to act with confidence in reporting concerns to the relevant authorities.

At this point I would like to look at the criminal law. My noble friend made a powerful case that she thought that these kinds of witchcraft cases were excluded. The noble Baroness, Lady Howarth, said the opposite. We have considered the amendment carefully and we do not believe that it is necessary. We agree with the noble Baroness, Lady Howarth, in this regard. This is quite simply about child protection and human rights. If we cannot include these kinds of cases, what does our child protection mean? Although existing legislation does not specifically mention communication of a belief that a child is possessed by spirits, the current offence of child neglect already includes conduct likely to cause a child unnecessary suffering or injury to health. In addition, conduct not caught by the Section 1 offence could be caught by other offences, depending on the circumstances of the case.

For example, any person, not just a child’s parents or carers, who caused physical or psychiatric harm to a child—which I think is what my noble friends Lady Walmsley and Lady Brinton are talking about—could be prosecuted for the offence of assault. Similarly, any person whose words or behaviour cause serious alarm or distress to a child, or made the child fear that violence could be used against them, could be prosecuted under Sections 4 or 4A of the Public Order Act 1986 —or, if the behaviour formed part of a course of conduct, it could constitute an offence under the Protection from Harassment Act 1997.

In addition, any person who encourages or assists such conduct could be prosecuted as a secondary participant, or on the basis of an offence under Part 2 of the Serious Crime Act 2007. For example, a religious leader who encourages or assists parents or others to abuse or neglect a child, in the belief that the child is possessed by evil spirits, could be guilty of an offence. We must ensure that our child protection policy is overarching, and includes cases such as these and all other manifestations of child abuse.

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[Lord Storey]

I understand the point my noble friend makes about the reluctance of parents to report abuses. Does that not indicate that the law needs to be changed so that corporal punishment is not allowed in any setting? What will happen if certain settings refuse to sign the code of conduct? What sanctions have we got?

[Baroness Northover]

As I mentioned, this is a voluntary code. We are developing it and taking it forward. I am well aware that my noble friends may feel that that may not immediately go as far as they might wish, but I hope that they will welcome a move in the right direction. Let us see how we can take this forward. We need to make sure that a number of these organisations begin to sign up to this, because that is what will make a difference as they change the way they do things in relation to children in their care. We need to move things forward in a number of different ways. We will keep this under review and see how it is working. No doubt noble Lords will wish to probe to see how it is working out.

[Baroness Walmsley]

I thank the Minister for her comprehensive reply to all noble Lords who have spoken in the debate. I think we have succeeded in highlighting the issue. On Amendment 243, I particularly thank the noble Baroness, Lady Howarth, and pay tribute to all her work on this subject.

It is quite clear that within the communities that are affected by witch branding, there are differences of opinion about what would and would not be helpful. None of us is saying that working with the communities and making them aware that this is child abuse is a bad thing. Of course it is a good thing. I just do not think it is quite enough for some people.

The noble Baroness, Lady Howarth, talked about the existing law, as did the Minister. She said it is quite enough to catch people who abuse children in this way. What I am talking about is early intervention, if you like. Although once a child is physically abused, all kinds of laws have been broken and people can be charged on that basis, what I would like to get absolutely clear from the Minister is an acceptance that telling a child that they are possessed by evil spirits is child abuse. It causes the child enormous mental trauma, and you just do not know how that will affect them over many years. The Minister said a great deal about that amendment, so I will go away and read Hansard very carefully to try to find out whether there was an acceptance that simply telling a child before you lay a hand on them that they are possessed is child abuse.

The Minister mentioned a number of laws under which somebody might be charged with child abuse for doing that sort of thing, but I wonder how many cases there have been. How many people have actually been charged and imprisoned for that? Do communities and parents really understand that simply telling a child that is enough to qualify as child abuse, and that it should be reported and the child should be given special protection? Will my noble friend write and tell me what sort of guidance there is for social workers on this particular issue?

I thank the noble Baroness, Lady Lister, and my noble friend Lord Storey and others who supported Amendment 246. My difficulty with what the Minister said is that you can charge and imprison somebody only when the case is reported. One of the major problems is the reluctance of parents to come forward and tell the authorities that the child is being abused, perhaps particularly if the abuse is happening in a place of faith instruction. The Under-Secretary of State for Children and Families, Edward Timpson, has been very open to discussions with me, as the Minister said. I am quite sure that he, like me, would like to iron out this sort of practice once and for all.

However, a voluntary code of conduct just will not do. Would a code of conduct do in the comprehensive school down the road? Would it do in the primary school round the corner? No, it would not. Parliament said a long time ago that a code of conduct for teachers was not good enough in those settings. I am afraid that it is not good enough in a place of part-time education, either. I shall undoubtedly keep on badgering Ministers about this until the law is implemented. A piece of legislation was passed, but it is no use if it is not implemented. It needs implementing in order to stop this. It is not going to be a magic bullet—I know that. Neither of my amendments would be a magic bullet, but they would contribute towards moving us to a completely different situation.

I will go back to Amendment 243. The noble Baroness, Lady Howarth, talked about Africa. I am not suggesting that, just because a number of African countries have changed the law, things are all wonderful. They absolutely are not; they are horrendous. The fact is that it is very early days in those countries for the laws that have been put in place. When you have a situation where these beliefs and activities are as entrenched as they are in some of these countries—much worse than they are here—it will take years for the change in the law to have any effect. I do not accept that point.

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Amendment 249A withdrawn.

[Baroness Northover]

My Lords, we have been given permission to go on until 8 pm, as I announced at the beginning of this Sitting, because we are running behind in the consideration of this Bill. I am acutely aware that the staff of Hansard need to work beyond their normal hours to do that. Therefore, we will need to finish at 8 pm. I realise that a number of noble Lords are here specifically for the next two groups and that they have helpfully combined them so that the subject matter can be addressed. My initial feeling was that if everybody was very brief, we might be able to get through. My sense now is that we may have to break in the middle of the debate. We will see how we get on.

Amendments 250 to 252A not moved.

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[Lord Ribeiro (Con)]

My Lords, I hear my name mentioned and I think I ought to say something very briefly. Your Lordships are influenced only by evidence. The evidence following the legislation in 2006 in Scotland and 2007 in England has already shown measurable effects in improving healthcare, particularly among non-smoking bar workers, in whom one study found an 89% reduction in cotinine concentration, which is a specific marker for tobacco smoke exposure.

That benefit should not be restricted to bar workers but should be the right of children who find themselves confined in cars where adults are smoking. I support this amendment very strongly. I hope that my noble friend the Minister will be minded to consider it. I realise that the Government have a programme for behavioural change and education and may wish to pursue that. The research, however, points to the fact that there is an improvement if we reduce second-hand smoke.

[Baroness Northover]

My words in front of me say that this may be a convenient moment for the Committee to adjourn. I know it is not. I am very grateful to noble Lords for abbreviating what they had to say. I am extremely grateful to our Hansard colleagues for staying on beyond their allotted time. I am sure that we will come back to this on Wednesday, but I am afraid that I will have to adjourn the Committee.

Debate on Amendment 263 adjourned.