Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Report: 1st sitting: House of Lords
Tuesday 18th October 2016 Lords Chamber

[Lord Nash]

I think we can do that. I am happy to discuss this further with the noble Lord but, as I understand it, we are proposing to list them as conditions and draw practitioners’ attention to them. As I was saying, I am reluctant to do anything further on this in relation to mental health until the expert group has met, but I invite the noble Baroness, Lady Tyler, to meet that group.

[Baroness Walmsley]

I am sorry to interrupt the Minister again, but I would like him to clarify what he was saying to my noble friend Lady Tyler. He mentioned that if the expert group says that the gist of what she is recommending should be in place, the Government will be prepared to legislate. Legislative opportunities being so few and far between, can he assure the House that a suitable vehicle, in the form of a Bill, will be available in this Parliament to achieve that, should the expert group make that recommendation?

[Lord Nash]

I am not authorised to make that assurance or to predict future legislation standing here. However, we have appointed these experts, we know what their direction of travel is and we will listen very carefully to all their recommendations, including on future legislation. Obviously, when I say “future”, I mean that if they make recommendations, we would like to get on and legislate, where appropriate, as soon as possible. However, it would be helpful if the noble Baroness, Lady Tyler, had further conversation with the co-chairs.

Lastly, I thank the noble Earl, Lord Listowel, for his comments about Clause 29. Of course, we are not due to consider amendments to that clause today. The Government have tabled several amendments to address points made in Committee, and I encourage noble Lords to give them proper consideration before we have a full discussion of that clause in some weeks’ time. I am happy to have further discussions on this with noble Lords in the interim; it would be very helpful to discuss this clause in more detail. I also thank my noble friend Lord Faulks for clarifying the point raised earlier by the noble Lord, Lord Lester. I hope and trust that what I have said—particularly on the amendment on the corporate parenting principle—will reassure the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Tyler, and persuade them not to move their amendments.

--- Later in debate ---

[Lord Nash]

My Lords, in Committee we promised the noble Lord, Lord Watson, that we would consider his amendment in Grand Committee to ensure that the current drafting of Clause 4 fully captures those with parental responsibility where the child has left care under special guardianship or child arrangements orders. Following further consideration, the Government have decided an amendment is necessary to Clause 4, and I am grateful to the noble Lord, Lord Watson, for bringing this to our attention—I am rather disappointed that he is not here to hear me say that, but I hope the noble Lord, Lord Hunt, will pass on my thanks.

The amendment will make it clear to local authorities in England that they must make advice and information available to any person who has parental responsibility for a previously looked-after child for the purpose of discharging their duty to promote their educational achievement. Unlike adoption, where only the adoptive parents have parental responsibility, parental responsibility in respect of children named in special guardianship and child arrangements orders may be shared with the child’s birth parent or parents. This amendment is therefore important to ensure that all those with parental responsibility are not excluded.

I would like also to speak to government Amendments 21, 24 and 27, which are technical amendments to Clauses 4 to 6 that will ensure that children who were previously looked after and adopted under the Adoption Act 1976 are also within the scope of the new duty on local authorities and schools to promote their educational achievement. These “older” children will be in secondary education, and they too should have access to the virtual school head and the designated teacher. I hope that noble Lords will accept these government amendments.

Before hearing what noble Lords have to say on other amendments, perhaps it would be helpful to noble Lords, and particularly to the noble Baroness, Lady King, if I say that the Government will table an amendment to the Bill in the other place to bring children adopted from care outside England within the scope of Clauses 4 to 6.

[Baroness Walmsley (LD)]

My Lords, it was my intention to speak to Amendments 22, 23, 25, 26 and 28 in my name and that of the noble Baroness, Lady King of Bow, and other noble Lords. However, I am delighted to hear what the Minister has just said. To explain to other noble Lords who may not be familiar with the effect of these amendments, I should say that they refer to the educational entitlements of children adopted from overseas to make them equal to those of children adopted from this country. I must declare an interest in this subject because I have a much-loved adopted Chinese granddaughter, although she would not benefit from these amendments since she and her family live abroad.

From a peak of 25,000 adoptions a year in the mid-1970s, the number of adoptions fell in England to only 3,000 in 2011. But the new focus on adoption of the previous Government and of the current Government has made a very big difference. The number of adoptions is going up again, and they are extremely resilient, as shown by a certain amount of research. Only 3% of them break down, which is less than those where children are put under special guardianship. In acknowledging the need for the numbers of adoptions to grow, the application has been made easier and shorter. However, before those reforms took place, many would-be adopters turned away by local authorities had to adopt internationally if they were to have a family, particularly if they wished to adopt an infant. A number of international adopters, including my son, would willingly have adopted in the UK but were turned away, sometimes because of their ethnicity.

There used to be a view that children adopted from abroad did not come from the care system in their country. That may have been the case some time ago but that has changed. Indeed, Martin Narey, who had previously claimed that that was so, has changed his mind in view of changes in all those countries. Most of the children come from care in the countries from which they are adopted. That means that they have exactly the same traumatic experiences that children adopted from care in this country have, and therefore they have exactly the same needs. Those children have already benefited from several elements of the adoption support fund, but until today they had not benefited from the educational advantages that were given to children adopted from this country. So I am delighted that the Minister has indicated in what he has just said that he has accepted that those children need the same advantages in education. We are talking about children who are all British nationals, all with a similar experience of neglect and abuse and all adopted from care. The only difference is that in some cases internationally adopted children might also have experienced deeply inadequate medical care and malnutrition in their country of birth, so actually they may be worse off than children adopted from care in this country.

The Minister suggested that amendments would be tabled when this Bill goes to another place, so I look forward to seeing that. That will remedy the fact that we have up to now condemned a very small number of British children who have suffered neglect and abuse to lives much less successful than they might have been. I hope that will now change. I thank the Minister and the noble Baroness, Lady King of Bow, for suggesting these amendments.

[Baroness King of Bow (Lab)]

My Lords, I do not wish to detain the House on this amendment—I will detain the House on a later amendment instead—but I want to sincerely thank the Minister for the excellent news that he has brought. As the noble Baroness said, it is only a small number of British children, but they are British children. As an adoptive parent, however you adopt your child and wherever your child comes from, you expect them to have the same life chances in Britain, because that is, I hope, what Britain is about.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I will speak to my own amendment and perhaps come back when we have had a debate on the other amendments in the group. This takes us back to an interesting discussion that we had in Committee about fostering and the risk that fostering will be placed in a lower hierarchical category in relation to the provisions of the Bill. Let me say at once—if the Minister is paying attention—that I welcome the issue of the clause, looking at the long-term needs of the child, and developing a plan that will assess their current and future needs and a permanent plan to meet those needs. We all agree that this clause places these issues at the forefront of decision-makers’ minds when assessing the care plan. Clearly, it is important to ensure that all permanent options benefit from this clause. That is why all options should be written explicitly into the Bill.

What is concerning, particularly to those involved in fostering and the fostering network, is whether we can get clarity in the law to avoid some options, particularly adoption, being seen as more important than others in a hierarchy of care. I do not at all underestimate the importance of the need to encourage more adoptions. I have no doubt that this is the right way to go. But it should not be at the expense of prioritising adoptions over fostering.

A legal framework is in place. A legal definition for long-term foster care was introduced subsequent to the passing of the Children and Families Act 2014. The Care Planning and Fostering (Miscellaneous Amendments) (England) Regulations 2015 amended the Care Planning, Placement and Case Review (England) Regulations 2010 by providing for the first time a legal definition of long-term foster care and setting out the conditions that must be met. This step rightly strengthened the importance of foster care as a permanent option for children and young people in care.

As the Government have placed long-term foster care on a legal footing, the opportunity should be taken in this legislation to include it as a permanent option. The Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review June 2015 includes reference to the range of options for permanence and this could be used as a basis from which to amend new subsection (3B) to reflect the range of options for permanence that already exist in law—all of which can deliver good outcomes for individual children.

In Committee in the House of Lords, the Government said that the amendment would duplicate wording in Section 22C of the Children Act 1989 that sets out how looked-after children are to be accommodated by local authorities. That is something that I would like to clarify with the Minister. The fostering network disagrees with this because it believes that Section 22C(6) of the Children Act 1989 does not mention long-term fostering and the term has no legal meaning prior to the Care Planning and Fostering (Miscellaneous Amendments) (England) Regulations 2015 that I referred to. Section 22C(6) specifies only the range of ways in which a looked-after child may be cared for, including foster placements. It does not focus on permanence. As the Bill stands, Clause 8 is inconsistent with the statutory guidance on permanence planning. My amendment would ensure that all permanence options were recognised with equal status across all relevant primary and secondary legislation. We should bear in mind that currently three-quarters of looked-after children are fostered, so this is an important question.

I understand that I have raised some technical issues, but the core importance of this is the need to avoid a hierarchy of care. In addition to responding to the technical questions that I have raised, if the Minister can say that there is no intention of having such a hierarchy, it would indeed be very helpful. I beg to move.

[Baroness Walmsley]

My Lords, my Amendment 31 in this group would add the child’s wishes and feelings to the list of matters that must be included in the local authority’s Section 31A plan under the Children Act 1989. Permanence has just been mentioned by the noble Lord, Lord Hunt. The permanence provisions of a care plan must be considered by a court before a care order is made—or in some cases not made. The court must additionally consider contact arrangements and the views of parties to the proceedings about contact. The child is a party in care proceedings, so his or her views would be elicited about contact. To ensure that their wishes and feelings are elicited and reported on all aspects of permanence, it is necessary to specifically include this in Clause 8.

The Department for Education has defined permanence as follows:

“Achieving permanence is multifaceted. It requires children to experience not only physical permanence in the form of a family they are a part of and a home they live in but also a sense of emotional permanence, of belonging and the opportunity to successfully build a strong identity. Legal status may also impact on children’s sense of permanence”.

Without an explicit and specific requirement, it would be quite possible for the part of a care plan dealing with permanence to omit the child’s wishes and feelings about the relationships they value, their sense of belonging and stability and their hopes and dreams for the future. This is not to give undue weight to the child’s wishes and feelings or to place unrealistic expectations or pressures on them; it is just to ensure the child’s rightful place at the centre of proceedings as a human being whose lived experience, wishes, feelings and perspectives should be at the heart of the court’s consideration.

In Committee, the noble Lord, Lord Nash, said that,

“this principle is already captured in existing legislation”.—[Official Report, 6/7/16; col. GC 214.]

However, he referred to provisions in Part 3 relating to local authority consultation duties in respect of the children they look after. This issue is separate from the court’s consideration of the permanence provisions of the child’s care plan. It could be argued that the court’s duty in respect of the permanence provision coalesces with its general duty under the welfare checklist to have regard to the ascertainable wishes and feelings of the child concerned—considered, of course, in the light of his or her age and understanding. However, this is one of many aspects of the checklist; there is a whole long list of things. My amendment seeks to ensure that the local authority seeks and reports on the child’s wishes and feelings specifically on the permanence arrangements, in addition to their wishes and feelings on any other matter affecting them.

Statutory guidance on care planning already refers to the child’s wishes and feelings, so placing the child’s wishes and feelings into this part of the legislation accords with national policy, professional standards and children’s rights under the UNCRC. So I hope that the Minister will be minded to accept the amendment.

[Baroness King of Bow]

My Lords, my motivation in trying to change the law as outlined in Amendment 34 was driven by painful insight. After meeting hundreds of foster families, I realised a strange fact: I had never met a single middle class foster family. Of course they exist, but they are not the norm. The norm is that low-income families foster Britain’s most vulnerable children, and that when children with more complex needs are not attractive to prospective adoptive parents, it is the same low-income foster families that often step in to adopt. So it really would be unforgivable for us to further reduce the income of those families who, after all, are looking after our most vulnerable children on behalf of the whole country, by restricting the child benefit payable to adopted children, for whatever reason.

I am delighted that the Government listened to the extremely powerful contributions made on all sides of the Committee and accepted our argument. I am genuinely grateful, in particular, for the personal intervention of the Minister—who, as far as I am aware, made this decision purely on the basis of the arguments placed before him. God knows how rare it is for Ministers to make decisions purely on the basis of the arguments. That is obviously not a party-political point but a realpolitik point. Having been a parliamentarian and immersed in realpolitik for two decades, it gives me real pleasure that my last speech in this House for very many years, since I am shortly taking a leave of absence, will be a speech accepting this concession. In fact, some noble Lords will know that I should have left already, but I have never been great at making an exit, especially if I have concessions coming—and it turned out to be more than one.

It is not an exaggeration to say that I received the overwhelming support of all sides of the House when I tabled this amendment, as well as the Minister’s constructive response, along with that of his colleague Edward Timpson MP. Those factors combined have made this particular change in the law one of the highlights of my two decades in Parliament. Some may say I should have had a few more highlights, if I am so excited, but it is absolutely good enough for me because, after all, what this change means is that we will not increase financial disincentives for families that want to adopt children currently in care. Of all the subjects I have pursued in Parliament, this is one of those closest to my heart, because I look at my three adopted children every day and marvel at what happens when you give children a chance. That is what this concession does today. So I shall bow out from Parliament by saying thank you, sincerely—it has been a privilege to influence debate.

Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Wednesday 13th July 2016 Grand Committee

[Lord Ramsbotham (CB)]

My Lords, I added my name to this amendment because I was moved to do so, particularly by the British Association of Social Workers, which wrote saying that:

“We are not opposed to exploring new social work regulation options. We support steps to improve accountability of social workers, enabling them to show increasing specialism and skill. But we are opposed to these proposals that concentrate government control and that contain no incentive for the profession to lead in setting standards and developing its self-governance”.

In other words, it is not averse to regulation and it is all in favour of maintaining the independence of that regulator and separating him or her from the governance that is proposed in the Bill.

This is the second time in my life that I have supported an initiative in which my noble friend Lord Warner was involved. When I took over as Chief Inspector of Prisons in 1995, the control of young offenders was entirely in the hands of the Home Office, and it was an absolute disaster. They were treated badly, their conditions were appalling and nobody was taking an interest in the conditions and treatment that they received in the various establishments. Then came the Youth Justice Board—proposed and led by my noble friend—and there was immediate transformation. The merit of this amendment is not only that it has come from someone who clearly knows the profession because of his past experience; it also reflects both the practicalities of regulation that is required and has the support of the whole profession, which the Bill clearly does not.

[Baroness Walmsley (LD)]

My Lords, I have also added my name to this amendment, and to Amendment 135C in the next group, which we will come to in a moment.

I really think the Government have some questions to answer. Why is this new regulator needed? The Minister might answer by saying that having its own regulator would add to the status of social work. That is a perfectly decent answer, but not one that is totally under the thumb of the Secretary of State. Perhaps the Minister could tell us what the cost of creating this new regulator would be. The NSPCC is concerned about the danger of it creating a two-tier system of statutory and non-statutory social workers. I wonder if the noble Lord can answer that. What is the justification for putting regulation and improvement together? That question was very ably outlined by the noble Lord, Lord Warner. Why does this health and care profession have to be under the skirts of the Secretary of State? While I am about it, which Secretary of State are we talking about? The Bill does not say. Perhaps I should ask which woman it will be.

Many of us feel that if social workers were to become directly regulated by the Government, that would further weaken the trust—which is already fragile—between them and Whitehall. As the BASW said in the briefings we have all received, the Bill does nothing to address some of the real problems that affect social workers.

There is a real issue here because we have a significant shift of significant powers. It is a matter of principle. Why should social workers be the only profession in the health and care sector to be regulated by government? Nursing and medicine are not. They are public service professionals using their professional skills and judgment to make vital decisions about vulnerable members of the public. Bringing regulation under government control risks sending a demoralising set of signals to the sector. Loss of independence is likely to be seen as evidence that social work is really not up to it and needs a very close eye kept on it. That seems odd because it is at odds with what Ministers have been saying recently. They have been saying that social workers have been disempowered by command-and-control-type initiatives from central government and should be trusted to exercise their professional judgment and respected as professionals who undertake very complex work. Hear, hear! I agree with that. Why seek this government stranglehold now?

[Baroness Pitkeathley (Lab)]

My Lords, I remind the Committee that I have form in this area as the person who chaired the committee that set up the General Social Care Council, as the first chair of the General Social Care Council and as the chair of the Professional Standards Authority which oversaw the demise of the GSCC and the transfer of regulation to the HCPC. There are, as we know, terrible problems facing social work and social workers at the moment, so to be discussing these structural changes now is rather like rearranging the deckchairs on the “Titanic”. That said, I support the idea of getting very much more independence for the regulator of social work. The separation between regulation and improving standards is important. That is a very well-established principle. The Department of Health is promoting that principle as we speak, building on the Professional Standards Authority’s paper Rethinking Regulation. All this applies to other health regulators, as Ministers well know.

Independence is extremely important. The oversight of the current regulator, the HCPC, by the Professional Standards Authority—I am no longer its chair, but I still declare an interest—is a vital part of assuring not only its independence but its performance by scrutinising its fitness-to-practise cases and referring them to the High Court where it has failed to protect the public. I remind the Committee that the purpose of regulation is to protect the public.

I wonder whether the Minister has considered the disruption element of the Government’s proposals. The HCPC has only just finished, this month, dealing with the legacy fitness-to-practise cases it inherited from the General Social Care Council. If a new regulator is set up, it will have to deal with the legacy cases of the HCPC, which will mean two different systems with two different sets of staff and consequent expense. Cost is another area that we all have to be very concerned about with these issues, and I raised it at Second Reading.

--- Later in debate ---

[Lord Warner]

What expertise does the DfE have in relation to the work and performance of social workers working with adults? The Minister has no responsibility for that. His officials have no knowledge or responsibility for this area. Where is the evidence? Does this come from the Department of Health? Where has it come from?

[Baroness Walmsley]

My Lords, I did not get an answer to my question about which Secretary of State it would be. Strangely enough, although Clause 21 refers to “Secretary of State” in the singular, in his response the Minister talked about Secretaries of State. Will he clarify whether we are talking about the Secretary of State for Education and the Secretary of State for Health in agreement? If so, what will happen if they do not agree?

[Lord Watson of Invergowrie (Lab)]

Today’s edition of Written Statements and Answers contains an Answer to a Question that I put down on social work training. It is from the noble Lord, Lord Prior of Brampton. Why is that?

--- Later in debate ---

[Lord Ramsbotham]

My Lords, I was attracted to putting my name to Amendments 135B and 135C because of their cleanliness and simplicity, and the fact that they picked up all the points that had been made in the Government’s policy statement, Regulating Social Workers, which was published last month. There was nothing missing. Furthermore, what the amendments proposed was independent and objective, and therefore they were likely to attract the support of the profession.

I could not help reflecting on two things. One was that when I was Chief Inspector of Prisons, when I inspected a prison that had an under-18 wing the social services were responsible for under-18s at that time, so I took a social services inspector with me. She said that if it had been a secure children’s home, it would have been closed because of the lack of facilities. Those facilities were then under the direction of the Home Office, which claimed to be responsible for young people in custody. That has always suggested to me that government should not get close to the delivery of these things.

The second thing, which I admit struck me as strange, was on page 19 of the Regulating Social Workers report. One paragraph says:

“Ministers will lead on issues such as setting standards and delivery of responsive improvement programmes to raise the calibre and status of the profession”.

The next paragraph says:

“While Ministers retain ultimate responsibility, decisions will be kept at arm’s length”.

How can you lead at arm’s length? It struck me that there was considerable confusion in all this and that therefore the Government can consider the clarity of Amendments 135B and 135C as helping them to deliver what they want. As the noble Lord, Lord Hunt, said, we all want improvement as quickly as possible, and I think that the profession does as well. We appear to be in the mire of confused thinking, which could be avoided by withdrawing from it.

[Baroness Walmsley]

My Lords, I hope that the Minister sees Amendments 135B and 135C as a helpful attempt to get over problems with the way that the Bill is currently worded. There are two clear issues: one is the muddling together of regulation and improvement and the other is independence.

The Minister made a very decent argument for a new regulator focused solely on social work. Many social workers agree with that. Indeed, that is exactly what Amendment 135B would do, but it would not muddle it with improvement and, of course, the regulator would be independent. I was a little confused by some of the things that the Minister said about independence in the debate on the previous group. He talked about moving the whole thing closer to government but he also talked about operational independence. Those sound like two conflicting things to me. Given that the HCPC is both financially and operationally independent, what it is about the way it has operated its independence that make the Government think that the new body should not be independent?

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, noble Lords will be reassured to hear that I do not intend to speak to every clause; I just want to raise points on three of them.

The first concerns Clause 22 and the question of fees, and I do not want to repeat what has been said. Obviously, setting up a separate regulator will be more expensive than regulation continuing under the HCPC. I think that the implication of what the noble Lord, Lord Nash, said was that it will be done without increasing fees for social workers. However, is there not a general rule in government about regulators having to be self-financing? We have dealt with various orders on increased fees in relation to health regulators because of the requirement on those regulatory bodies to break even, so is the Minister right in saying that fees will not have to increase? There may be some legislative provision to cover this. Is there not a requirement that a regulator can start with a subsidy from a central government department but, in the end, it has to consume its own smoke? I suspect that the noble Lord will not be able to respond immediately but, on Report, we would like a much more explicit statement about what will happen to fees in the future.

My second point relates to a question about offences raised by the Constitution Committee in relation to Clause 34. The committee says:

“The Clauses to which the offences will relate—Clauses 22 and 23—contain little detail on the face of the Bill but will themselves need to be defined and implemented by regulations … From a constitutional point of view, the creation of criminal offences, whether or not punishable by imprisonment, should be subject to proper and full parliamentary scrutiny. The House may wish carefully to consider how it can appropriately scrutinise the creation of criminal offences which are not only themselves undefined but which will relate to other legislative provisions that are also still to be delineated”.

I can imagine that if this Bill ever got to the attention of our legal experts in the House, they would express very great concern about the use of what are basically Henry VIII powers to create new offences. I do not think that it is good enough for this change to be brought about just through regulations.

Thirdly, I want to refer to the Delegated Powers and Regulatory Reform Committee, which says:

“Clause 35(3) allows social worker regulations to include provisions which themselves would confer a further power to make, confirm or approve subordinate legislation. It says nothing explicitly about the person or persons on whom subordinate legislation making powers may be conferred, or about the matters to which the subordinate legislation might relate. We assume the intention is that the subordinate legislation making powers may be conferred on the regulator or a Minister of the Crown, and that they can relate to any matter dealt with in Chapter 1 of Part 2”.

It goes on to say:

“We were disappointed”—

House of Lords committees express angst by expressing disappointment—

“that the Department failed to provide any explanation for including the subordinate legislation making power in clause 35(3), particularly given its breadth, the lack of any explicit constraints on how it might be used and the absence of any requirement for Parliamentary scrutiny”.

I know that the Government have now responded to the Delegated Powers Select Committee but can the noble Lord place on the record their response to this? Obviously, it raises a question about whether this is an appropriate use of secondary legislation.

[Baroness Walmsley]

I share the concerns of the noble Lord, Lord Hunt, particularly his first point about the fees from social workers. Those of us who speak to the health portfolio will know well that we have had concerns expressed to us, particularly by people who run small care homes, about the CQC fees being increased very considerably recently. The reason for that is the Government’s policy that regulators should be self-funding, which is an example of exactly the policy that the noble Lord has just queried. The question that he asked is: does this apply to the new regulator proposed by the Government for social work? If it does, then reassurances that fees will not rise are perhaps a little disingenuous.

[Lord Nash]

My Lords, perhaps I can respond first to the point made by the noble Lord, Lord Hunt, and the noble Baroness, Lady Walmsley, about fees and self-financing. I will look at that and respond in due course. Secondly, the noble Lord, Lord Hunt, raised a point about offences, while his third point was about Clause 35 and what it is proposed to cover.

So far as offences are concerned, Clause 34 contains a power to create offences covering a number of specified areas. I have been clear throughout the passage of the Bill that any system of regulating professionals must focus on public protection. In order for this to be effective it is essential that the register is accurate, that it is based on current information and that people co-operate with regulatory processes. This clause contains powers to create offences that directly address these issues.

The indicative regulations make provision for three categories of offences that are, of course, subject to consultation. They include offences that relate to: registration and restrictions on practice and protected titles; the provision of evidence; and in connection with providing false or misleading information. These are all important safeguards for public safety that will benefit individuals, employers and the profession as a whole. The indicative regulations provide for offences in relation to matters including: using the title of social worker with intent to deceive when a person is not registered; falsely claiming to be registered with intent to deceive; making a false representation as to qualifications, education or training or anything included or not included in their entry in the register, with intent to deceive; failing to comply with requirements to provide documents or other information to the regulator, or to attend to give evidence when required to do so; or fraudulently procuring or attempting to fraudulently procure the making, amendment, removal or restoration of an entry in the register by providing information or failing to provide information in breach of requirements under the regulations.

The purpose of creating offences under these powers is not to prosecute large numbers of people. I think that is clear from the offences, which set a fairly high bar. Rather, it is to provide for an effective deterrent that helps ensure people co-operate with the regulator and with the processes of regulation.

The noble Lord, Lord Hunt, referred to Clause 35, which provides that the regulations may be used to confer functions on either the regulator or a Minister of the Crown. They could also provide for those responsible to delegate the exercise of functions and decision-making to others, where this is appropriate. The regulations may be used to confer powers to make, confirm or approve subordinate legislation. The intention is that rules will provide for the detail about how the regulator will discharge relevant functions. The indicative regulations provide an illustration of this approach by setting out, for example, that rules will be made regarding the procedural and administrative arrangements for registration and for the operation of the accreditation scheme. I remind the Committee that there are similar powers under the current regime. That is all I propose to say at this stage and I therefore move that these clauses stand part of the Bill.

Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Monday 11th July 2016 Grand Committee

[Lord Ramsbotham (CB)]

My Lords, I am aware that my noble friend Lady Meacher and others have indicated their intention to oppose the proposition that Clauses 12 and 13, to which my amendments in this group refer, should stand part of the Bill. In advance of that debate, I will offer a brief explanation of what my amendments are designed to ensure.

Amendments 105 and 107 are linked to Amendment 135, which was tabled on Monday by my noble friend Lady Howarth of Breckland, in that they relate to a specific recommendation in the recent UN Rights of the Child report that the United Kingdom should ensure automatic review of child deaths in institutions. Amendment 105 is a description of what is meant by a place of detention, to which Amendment 107 refers. If my amendments are accepted, Amendment 105 should appear in new Section 16B(9), after Amendment 107, which will appear in new Section 16B(8) —to thoroughly confuse the Committee.

Like my earlier Amendment 92A, Amendment 109 is designed to bring existing statutory guidance into primary legislation. Noble Lords will recall the very disturbing footage of the physical and emotional abuse of children in Medway Secure Training Centre broadcast in a BBC “Panorama” programme in January of this year. The Ministry of Justice’s usual response to such allegations is to convene an in-house National Offender Management Service panel, which is not the same as a national Child Safeguarding Practice Review Panel.

During my time as Chief Inspector of Prisons, this was exemplified by the refusal of successive Home Secretaries to allow judicial review of the circumstances leading to the murder in Feltham of a young prisoner, Zahid Mubarek, by a known racist psychopath, until ordered to do so by the Law Lords then sitting in this House. This resulted in 78 recommendations for future improvement, plus the naming of 28 individuals who had failed in their duty—serious matters that might otherwise have remained hidden. Both incidents show why it is so important that the new arrangement, and this legislation, should include children in places of detention.

Amendment 109A is designed to ensure that concerned individuals and organisations have a channel through which to share significant information. The amendment allows for boundaries for public notification to be set by statutory guidance in order to protect the national panel from inappropriate referrals.

Finally, Amendment 110 clarifies that a regulated setting, in respect of a local authority’s duty to notify the Child Safeguarding Practice Review Panel of a child’s death, includes places of detention, as listed in Amendment 105. I beg to move.

[Baroness Walmsley (LD)]

My Lords, my Amendment 106A is in this group. It was Amendment 108 but for some reason has been retabled. The arrangements for the national review panel appear to omit its opportunity to review cases of serious mistreatment and/or physical injury caused by restraint in youth custody institutions or other kinds of institutions. This amendment makes it clear that these cases should be looked at by the panel because they raise serious issues of national policy and practice. I do not think that it should be restricted to just deaths in custody, as suggested by my noble friend Lord Ramsbotham, although I fully support what he said about that.

The noble Lord, Lord Ramsbotham, referred to the BBC “Panorama” programme about the Medway Secure Training Centre. Reports obtained through Freedom of Information Act requests reveal that children in custody suffered serious physical injuries following restraint on three separate occasions in 2013-14 and on four separate occasions in 2014-15. As the noble Lord, Lord Ramsbotham, mentioned, Ministers will often refer to the National Offender Management Service. But that is not a safeguarding panel. One of 10 recommendations made by Her Majesty’s Inspectorate of Prisons, following its review of the new system of restraint in child custody, urged more effective independent oversight of restraint by local safeguarding children boards and local authorities.

The Government have tabled an amendment to abolish LSCBs, which makes it even more important that this new arrangement of a national panel includes harms to children in custody and other institutions, not just deaths. This matter is of a very serious nature and is not really suitable for review at local level. The children in these institutions are often not located in their home authority, so it is essential that the new national panel looks at these cases—unless, of course, these clauses do not eventually stand part of the Bill, which will be debated later.

[Baroness Meacher (CB)]

My Lords, I must first apologise that I was unable to be present when my opposition to Clause 11 was debated. Unfortunately, I have a serious family health problem which has prevented me from being present or even doing any work on this Bill until today, I have to confess. I will speak briefly to oppose the proposition that Clauses 12 and 13 should stand part of the Bill. I assure the Minister that the aim here is not to have the clauses struck out but to provide an opportunity to explore the implications of the two clauses as they are worded and to enable noble Lords to raise any general concerns ahead of Report.

I recognise the need to establish a stronger statutory framework that will introduce greater accountability for the three key agencies involved in safeguarding children—local authorities, the local police and the local health service, as proposed by Alan Wood—though I understand that there are concerns that other services should also be incorporated. However, the single purpose of a new framework, as made clear in new Section 16B(2), is absolutely rightly specified as,

“to ascertain what (if any) lessons can be learned from the case about the way in which local authorities or others should work to safeguard children”.

I hope we can explore how, in drawing out and disseminating the lessons from tragic events, we as a society can avoid increasing the blame culture, which has affected social workers and other public servants so severely in recent years. If we do increase the blame culture, the risk is that good social workers and other public servants will walk away from their jobs, as many public servants have done in recent years; others will simply not take up these professions; and the net result will be that the risks to children will increase rather than diminish. I know that that is absolutely not what the Government want to achieve—but there is a very serious point here, which I hope the Government will take on board.

If a social worker working with a family where a child unfortunately dies or is severely injured does fall short in some way, it is surely a matter for that social worker’s managers. It should not be a matter for national politicians and a national panel—whose role, as the Bill makes clear, must be solely to ensure that lessons are learned and disseminated. At a national level, the worst of all this is what happens when the media get involved—and they will get involved: they just do. That can wreck the lives of front-line workers to the point from which, to some degree, they never recover. I really do believe that it is that bad.

The review will of course need to establish whether any failings were a reflection of procedural issues, system failures or a lack of adequate resources. All of that is right and proper, but somehow we need to protect the individuals, not from proper disciplinary action or whatever is appropriate but from this national glare and utter devastation of their lives. If they have made an error, they probably did not intend to. So we have to get this right. It is terribly important that we do and I do not believe that the wording in the Bill achieves that at the moment.

Subsection (4) of new Section 16B inserted into the Children Act 2004 by Clause 12 requires the panel to publish the report on supervised child safeguarding in practice reviews. Alternatively, subsection (5) states:

“If the Panel consider it inappropriate to publish the report, they must publish any information relating to the lessons to be learned from the case”.

Is it really ever necessary or appropriate to publish a whole report on a specific case, which would inevitably involve publishing material about an individual front-line worker? The only national interest is in the lessons to be learned—the material that would be published under subsection (5). So I would welcome the Minister’s view as to whether subsection (4) could be deleted from the Bill. This would focus the minds of members of the panel on their sole role. It would also go some way to reassuring front-line staff that the Government are not aiming to focus national media and political attention on blaming an individual front-line worker. That is the key point that I hope we can think about in relation to these clauses.

My other point is a concern of the Local Government Association that the national panel, as outlined in the Bill, is too closely controlled by the Secretary of State. Again, this risks politicising the serious case review process, and the concern is again for the protection of front-line staff. But it is also very important to ensure that all the lessons are learned from these reviews, so it is absolutely vital that these reviews are seriously and really independent of government control. A review may need to comment on the impact of national policies on safeguarding failures and make recommendations for policy reform as well as procedural changes that are needed.

The Government have tabled Amendment 114, which risks placing too great an emphasis on the actions of individual practitioners in determining the cause of failures. We need to maintain the systems approach that we have had when undertaking these reviews. A focus on an individual’s failure in a particular area will have no relevance to the authorities in other parts of the country. Will the Minister look at the wording of Amendment 114 with this concern in mind?

The NSPCC has questioned whether it is right to limit the role of the national review panel to those cases that involve a death or serious injury, as raised by the noble Baroness, Lady Walmsley. With the focus clearly on lessons to be learned, it may be important to include cases involving near misses or areas where a lot of children have suffered some harm. It may help to clarify that in the Bill.

Finally, it seems important to clarify further the dissemination activities that will be required of the panel. Somehow this business of learning the lessons seems to be somewhat skated over. The Bill needs to make absolutely clear how this country will learn from these serious cases. That is what the panel needs to do.

--- Later in debate ---

[Baroness Walmsley]

For the sake of an accurate record, may I point out that Amendment 108, referred to by the Minister, was retabled as Amendment 106A?

The noble Lord suggested that the national panel would have the discretion to choose whether to investigate situations such as those described in my amendment involving,

“harm caused by unlawful or abusive restraint in any institutional setting”.

If we eventually have a national panel, this is exactly the sort of situation they should look into, because it is a matter of national policy and because children in such institutions come from a range of different local authorities. Despite the guidance, very often they are not located in their home authority. My point is that these cases should be investigated by the national panel on all occasions; it should not just be left to its discretion.

[Lord Ramsbotham]

I am grateful to the Minister for his carefully considered response. I just hope that between now and the next time we meet, there will not be a fourth huge volume of government policy for us to consider during the passage of the Bill. I am sure it is very reassuring to think that the Department for Education is producing all this stuff, but I must say that it would have been helpful to have had it before we began our deliberations, rather than having it fed in during Committee.

When the noble and learned Lord, Lord Mackay, was speaking, I could not help but reflect on my hopes when we introduced the corporate manslaughter legislation. I hoped that it would provide the stick to make certain that the outcomes of such investigations were taken seriously. But nothing has yet happened to bring corporate manslaughter charges against the managers under whom these unnatural deaths have taken place. It is something that is worth considering.

I was going to comment on my noble and learned friend Lord Judge’s remarks in the discussion on Clause 15. But, as the noble Lord, Lord Watson, mentioned his comments on the regulation, I will repeat what I said at Second Reading. I quoted the noble Baroness, Lady Smith of Basildon, who, during the debate on the balance of power between the Government and Parliament, said of this Bill that there were,

“more provisions for the Secretary of State to use regulations than there are clauses in the Bill, including on issues that should be considered matters of significant policy”.—[Official Report, 9/6/16; col. 860.]

I also quoted my noble and learned friend Lord Judge, who, in addition to making some devastating comments about the increasing number of Henry VIII clauses in current legislation, highlighted the number of them in this Bill and asked,

“when are we going to actually achieve something before our ... arrangements disappear into some vague unknown future?—[Official Report, 9/6/16; col. 875.]

I must admit that I am extremely alarmed at the number of them in the Bill, not least because the impact assessment on the Bill states:

“The Bill’s contents have been reviewed and ruled out of scope for the regulatory impact assessment exercise”.

To my mind, nothing could be more inappropriate because the regulatory impact assessment really needs to be carried out in spades on this Bill, as many noble Lords have said.

I am grateful to the Minister for offering his meeting on the national safeguarding panel, to which I look forward. In the meantime, and until Report, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Warner]

I will speak to Amendment 130 in my name and that of the noble Baroness, Lady Walmsley. I will also speak to the proposed deletion of Clause 15 from the Bill. Rather unusually, I would prefer that Clause 15 were removed from the Bill altogether than that the Government accept the amendment in my name and that of the noble Baroness.

Given the widespread concern outside this House that the noble Lord, Lord Watson, has already mentioned, we need to understand much better than we do at the moment why the Government are so keen to have this sweeping power in Clause 15. I find the underlying premises of Clause 15 extremely strange—even more so than when I spoke about the clause at Second Reading. First, the clause seems to presuppose that in some way legislation is blocking the delivery of good quality children’s services. There was an opportunity to explain these alleged blockages in the Minister’s latest document, Putting Children First but, on a quick read, I cannot see that that opportunity was taken except for some rather generalised remarks about testing “deregulatory approaches” and a quote from Professor Eileen Munro about “unnecessary legal rules”. But my understanding is that in her review of child protection, Professor Munro was not arguing for changes in primary or even secondary legislation, but for amendments to statutory guidance. Will the Minister clarify what the primary and secondary legislation blockages are, preferably in writing to all members of the Committee before Report?

To compound the confusion, I understand that the Government have already used existing statutory power to amend statutory guidance following the Munro review by issuing directions to particular local authorities. Ofsted’s annual report shows local authorities adopting innovative practice without the need for changes in legislation. Moreover, as the noble Lord, Lord Watson, mentioned, the Government’s very own Red Tape Challenge, as it was called in 2014, seems to have revealed very little to remove for children’s services. Again, will the Minister clarify that, preferably in writing? So far, the Government have produced no evidence that primary or secondary legislation is impeding innovation in children’s services. They already have plenty of scope for amending statutory guidance or issuing directions to particular local authorities without the wide-ranging power to repeal or modify children’s social care requirements in Clause 15 that would last, I understand, for at least six years.

One is entitled to be a little suspicious about what the Government are really up to with Clause 15. Of course, I am the sort of chap who takes for granted that Ministers are well intentioned when they bring measures before your Lordships’ House, but could it be that what lies behind this provision is a short-cut way of outsourcing whole chunks of services? Ofsted seems to be claiming that up to 25% of children’s services are inadequate. Rather than working with some external turnaround capacity to improve matters, is there a new-found enthusiasm within DfE for trying to get quicker results by removing legislative impediments to outsourcing?

Personally, I have no particular objections to outsourcing if that can be shown to have a beneficial effect for children after trialling. I have been trying to probe what the DfE is up to with the transfer of children’s services to trusts. On the answers that I have received, this is clearly an expensive process, it can be very time-consuming, accountability can become extremely blurred and at present there is no body of evidence to support it as a general remedy for failure. Moreover, the DfE has still to publish the report that it commissioned in 2014 from LaingBuisson into developing capacity and diversity in the provision of children’s services. I know from my involvement in that work that it did not suggest that creating a market in children’s services would be easy.

I turn briefly to Amendment 130, which would require the Secretary of State to set up an independent review panel to consider whether any exemptions or modifications under Clause 15(2) are likely adversely to affect the legislative safeguards or rights of children approved by Parliament and to consider the published advice of such a panel before acting. I consider this the least that we should do if the Government persist in proceeding with Clause 15. To sum up, we need much more transparency and clarification from the Minister on why the Government need Clause 15 and why they cannot use their existing powers of direction and statutory guidance to secure their espoused innovation objectives.

[Baroness Walmsley]

My Lords, I support the noble Lord, Lord Warner, in arguing for this amendment. If these clauses eventually remain in the Bill, which is in considerable doubt, although I will leave it to my colleagues to argue that case, it is vital that children’s rights and entitlements are not diminished in the process. These clauses, to my mind, fundamentally undermine rights that have been enshrined in children’s social care legislation following intensive debate in Parliament. They are to be removed at our peril. However, given that some local authorities have seen an 82% increase in the number of children in need between 2010 and 2015, at the same time as local authority budgets have continued to decrease, there is a danger that these new powers might be seen as a way to save money. However, undermining children’s basic rights should not be the penalty for innovation. Many local authorities have vastly improved the service that they give to vulnerable children by trying new things without seeking any exemptions from the children’s rights.

The noble Lord, Lord Warner, mentioned Professor Eileen Munro. He is quite right that she never suggested that we needed to repeal primary or secondary legislation; she just asked for less onerous guidance. Innovation has been done effectively through waiving statutory guidance in some authorities. Importantly, outcomes have been monitored and reported on and it is from such reports that lessons are learned. That is the way forward.

I question the necessity for this part of the Bill. In particular, I want to ensure that the Secretary of State can be assured by independent experts that the benefits to children’s rights will be greater than the risks. The key word here is independent because, according to the Bill, the only people who have to be consulted are the Chief Inspector of Schools and the Children’s Commissioner. I point out that both of them will already have been appointed by the Secretary of State. Although I have every respect for the current incumbents of those offices, we need more independence than that. That is why I support this amendment. Innovation should be encouraged within a framework of fundamental rights and entitlements within the law.

[The Earl of Listowel]

My Lords, before speaking to my amendment in this group I make clear that I support those noble Lords who call for the clause to be removed from the Bill. This is not the time to erode the rights of vulnerable children. As the noble Baroness, Lady Walmsley, said, we are facing a period of austerity. The Chancellor of the Exchequer has just removed his target to pay down the deficit by 2020 but we should certainly not think that that is the end of austerity; we can expect it to extend for many years to come. Unfortunately, that means that local authorities will continue to have severe downward pressure on their budgets, so I share the noble Baroness’s concern that whatever the good intentions of this clause, it might result in cutbacks on protections for children in order to save money.

The purpose of my Amendment 131A is, where a local authority has been exempted, to enable a child, his advocate or a professional to ask for the exemption to be released for that child. For instance, if the responsibility for putting in place an independent reviewing officer was removed, a child could, if he decided to do so, call for an IRO to be instated. The Minister referred to the role of IROs at Second Reading.

I draw your Lordships’ attention to research by the National Children’s Bureau. It has found that the area in which the IRO service has been seen to make the biggest difference is in ensuring timely reviews of the care plan. Nationally, the survey found that that was where IROs were perceived to have made the greatest difference, with 91% of IRO managers, 82% of IROs and 72% of directors of children’s services strongly agreeing that, since 2011, IROs have contributed to the timeliness of reviews. Another area in which IROs are seen to have had an impact is in ensuring that the care planning process remains firmly focused on the child and that the child’s wishes and feelings are taken into account. Nationally, the survey found that 90% of IRO managers, 72% of IROs and 73% of directors of children’s services strongly agreed that, since 2011, IROs had ensured that children’s wishes and feelings were recorded and taken into account.

Amendment 131B would ensure that there is excellent parliamentary scrutiny should Clause 15 continue to be in the Bill. Major voices from the children’s sector have been clear that innovation is necessary to ensure, in the face of increasing risks and challenges, that the sector can learn and improve. Like many, I share the concern of all the major children’s charities that the right safeguards should be in place to ensure that innovation is overseen properly and delivers for children and families without disruption to their lives. Such scrutiny is essential and should not be overridden. Local authorities should not be exempted from laws that have been developed and scrutinised with care and attention by both Houses without a comparable amount of parliamentary oversight of the potential impact of any exemptions. That is what the amendment seeks to achieve.

The amendment would ensure that only laws subject to the negative resolution procedure in their formation could be overridden by the same process. Whether in the process of seeking to innovate to improve services for children or otherwise, it is not appropriate or democratic that regulations introduced through a debate and vote in Parliament should be exempted without such a process. Our job is to hold the Government to account, and we should not be prevented doing so. It is imperative that our powers to scrutinise the safeguards needed to protect children from the impact of any exemptions are not disrupted by the desire to innovate to improve outcomes for children.

--- Later in debate ---

[Baroness Walmsley]

Before the Minister replies, would he reflect on the fact that those of us who came to the meeting last Thursday were given what the noble Lord, Lord Hunt, is asking for—three examples of where local authorities would have liked exemptions—and that we were not convinced by any of them? In every case, we could think of another way in which that difficulty could have been got around by a creative local authority in order to produce better outcomes for children, and of course there is no other excuse for doing it. We really were not convinced.

[Lord Warner]

I really must help to reinforce this message to the Minister, because from what he has said so far he does not seem to get it. What we need, in writing, are the primary and secondary legislation blockages that are stopping innovation and why in those cases you cannot use the Secretary of State’s power of direction or an amendment to the statutory guidance. That is the issue, and he has not come anywhere near tackling that proposition.

Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Wednesday 6th July 2016 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

Clause 8 extends the definition of permanence provisions as it appears in the Children Act 1989 so courts will also be required to consider provisions in the plan that set out the impact on the child concerned of any harm they have suffered or are likely to have suffered, their current and future needs and the ways in which the long-term plan for the child’s upbringing would meet all those current and future needs. This is an important provision and one that we are very glad to see within the Bill.

My Amendment 89 wants to encourage the Government to take this a little further by extending the circumstances under which permanence provisions will operate to embrace long-term foster care. There are two reasons for seeking to do this: first, to ensure that we have legal clarity—I will be interested to hear the noble Lord’s response on that—and secondly, to avoid some options, particularly adoption, being seen as more important than others in the hierarchy of care. This is particularly important in relation to long-term foster care.

My understanding is that a legal framework is already in place to allow this to happen. Since amendments to the permanence provisions were made in the Children and Families Act 2014, a legal definition for long-term foster care has been introduced. The Care Planning, Placement and Case Review (England) Regulations 2010 have been amended to introduce a new definition of a long-term foster care placement, and set out the conditions that must be met. This step rightly strengthens the importance of foster care as a permanence option for children and young people in care. As the Government have therefore placed long-term foster care on a legal footing, the opportunity should be taken in this legislation to make a link. I remind the Government that The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review of June 2015 includes reference to the range of options for permanence and could be used as a basis on which to amend subsection (3B) of the Children Act to reflect the range of options for permanence that already exist in law, all of which can deliver good outcomes for individual children.

Since three-quarters of looked-after children are fostered, surely any change to improve the outcomes for children in care needs to concentrate on those children as well as children who may be adopted. I beg to move.

[Baroness Walmsley (LD)]

My Lords, I have Amendment 90 in this group, which adds,

“the child’s wishes and feelings”,

to the list of matters that must be included in the local authority Section 31A plan. This is the plan that must be in place before a court can consider whether to make a care order.

There are many issues on which the child may have particular wishes and feelings, such as who is to foster them, where they are to live and what contact they are to have with members of their family and others. The inclusion of the child’s wishes and feelings is vital and should be uncontroversial. The court is required under the welfare checklist to have regard to the ascertainable wishes and feelings of the child concerned, considered in the light of his or her age and understanding. Therefore, placing local authorities under a similar duty will ensure that family judges have access to the information they need to determine what is in the child’s best interests. Local authorities are subject to comparable duties when undertaking child protection inquiries, assessing need and making decisions about a child they are looking after or proposing to look after. Independent reviewing officers are required to ensure that a child who is subject to a care order has been informed—again, in accordance with his or her age or understanding—of the steps he or she can take to challenge the order.

It makes no sense to arrange for children to be assisted in challenging their care order without any parallel requirement that they be encouraged to express their wishes and feelings prior to such an order being made. It is like closing the stable door after the horse has bolted. That is the basis of my argument for Amendment 90.

[The Earl of Listowel]

My Lords, I would like to support Amendment 89. I am grateful to the Government for clarifying the importance they place on long-term foster placements, but this amendment is also welcome. In the Government’s very important drive to secure more adoption placements, the risk is that it might appear to some that they do not value as much the very important role of foster carers who provide long-term placements for children. I welcome this debate and I encourage the Minister and his colleagues to take every opportunity, whenever they talk about the continuity of care that young people who have been traumatised and enter the care system need, to also speak very highly and positively of foster carers who provide long-term foster placements.

--- Later in debate ---

[Baroness Walmsley]

I am grateful to the Minister, and I am particularly grateful to the noble and learned Baroness, Lady Butler-Sloss, for her legal advice. I wonder whether we can sort this matter out. Perhaps the Minister can review the issue we have just discussed, and if he is still convinced that we do not need this amendment he can give us chapter and verse about exactly why that is. As far as I can tell, it is needed to make sure that we do not waste the court’s time. If the court gets the information from the local authority about the child’s wishes and feelings, it does not have to get it itself. We all want to save the court time. Perhaps the Minister could undertake to do that.

[Lord Hunt of Kings Heath]

That was a very helpful intervention from the noble Baroness, Lady Walmsley, and I am grateful to the Minister for setting out the intention of this clause which—I am sure I speak for all noble Lords—we very much support. The noble Lord clearly believes that current legislation covers the substance of the points raised, though that is subject to further clarification. Clearly we will have time between now and Report to consider this further.

There are also issues relating to practice. I understand what the Minister said about him, his department and Ministers being pro-adoption, and the noble and learned Baroness, Lady Butler-Sloss, equally made the point that it is right to encourage adoption. However, as my noble friend Lord Warner said, there is a risk of a hierarchy of options in which long-term foster care cannot always be supported in the way it should be. I worry that when this gets down to the level of children’s services there is a risk of perverse behaviour because of a belief that adoption is always to be preferred to foster care. I would particularly welcome further clarification and reassurance on that area.

On the issue of the child’s wishes and feelings, again, I am sure we will sort out the legal position. What has come from the debate is that in the experience of some of the courts, local authorities do not always seem to have found out the child’s feelings or wishes or to have taken proper account of them. Even if the legal position is okay—and obviously there are some concerns about that—some practice within children’s services needs to be improved.

Finally, my noble friend Lady King raised NHS mental health services. We will have further debate on this because we will be debating an amendment that looks at the problem of children covered by this legislation being sent for out-of-area placements. This is a horrendous problem, particularly for adolescents with mental health issues. Sometimes those young people can find themselves being sent to places 100 or 150 miles away. The NHS has some strong responsibilities here, which at the moment it is not discharging. I listened with great interest to what the Minister said about the work between his department and the Department of Health on care pathways. It is to be welcomed, but it is in the context of long-term consistent failure within the NHS in relation to mental health services for young people. Again, I hope we will have a further opportunity to debate that. This has been an excellent debate, and I beg leave to withdraw my amendment.

--- Later in debate ---

A freedom of information survey of English local authorities in summer 2015 found at that stage that at least 58 voluntarily accommodated children had been placed with a potential adopter in a foster for adoption placement. In that situation parents who, on any definition, will be vulnerable, may not be receiving legal advice because they are not eligible for legal aid provision and often would need legal aid to be able to obtain legal advice. I hope the Minister will see the strength of this argument and can respond in a positive way. I beg to move.

[Baroness Walmsley]

My Lords, I recall having some briefings about this issue in relation to a previous Bill in your Lordships’ House—I am afraid the name escapes me. It clearly is a real issue. As the noble Lord, Lord Hunt of Kings Heath, said, many of these parents are quite young and may not really understand the significance of what is happening when they agree to the voluntary placement, or the power of the status quo argument. Once the child is settled and there are no other reasons why the foster parent should not become the adoptive parent, it is unlikely that the court is not going to agree to the final adoption order. Particularly given the poor availability of legal aid for so many things these days, it is important that such parents are able to get advice, at the very least to make them aware of what they are agreeing to. If they then feel unwilling to agree, they need advice as to how to make their case to keep their child at home.

[Baroness Evans of Bowes Park]

Amendment 91A seeks to amend the Civil Legal Aid Regulations 2013 to provide parents with free legal advice when their children are voluntarily accommodated under Section 20 of the Children Act 1989 and the local authority wishes to put them in a foster for adoption placement. I understand the concern that parents need to have access to information and advice before they agree to their child being accommodated. The law is clear that a local authority cannot accommodate a child under Section 20 without the consent of a parent. The local authority must provide advice and information to parents to ensure that they fully understand the arrangements and give their informed consent. In addition, any parent can remove the child from the care of the local authority at any time. If individuals satisfy a means and merits test, they may be eligible for some funding for civil legal services, including initial advice about the nature of voluntary agreements. If the local authority later decides that a child should not return home and the best option would be to pursue adoption, the usual court process must be followed. It remains the case that a child cannot be placed for adoption unless the birth parents give their consent, or the court has made a placement order. That means that the court must consider the birth parent’s view before deciding that the adoption placement order is necessary. When a local authority informs a parent of the intention to initiate an application for an adoption placement order, they will become eligible for civil legal services, free of any means test, in the usual way.

I hope this explanation means that the noble Lord will agree to withdraw the amendment tabled by the noble Baroness, Lady Armstrong.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, first, let me correct an omission from my contribution at Second Reading—namely, that I did not publicly thank Thomas Brown for his typically helpful Library note, from which I quoted Dr Ruth Allen, chief executive of the British Association of Social Workers, who said that government reforms,

“need to be driven by social worker knowledge and skills”.

Noble Lords may question the words “be driven” and prefer something like “take account of”, but the sentiment is the same. Partnerships imply co-operation, and co-operation includes consultation.

I acknowledge that an amendment that seeks to give extra force to an existing ban on profit-making in children’s services by regulation by enshrining it in primary legislation does not sit easily in the group of clauses headed, “Care and adoption proceedings in England and Wales”, but neither does any fear that the Government might use Section 1 of the Children and Young Persons Act 2008 in this regard, which enables the social care functions of a local authority to be discharged by a body corporate. That would not sit easily with partners such as the Association of Directors of Children’s Services and many other organisations, which rejected any profit motive in the provision of children’s services in the consultation that the Government held in 2014 on draft regulations concerning a significant extension to the children’s service functions that could be outsourced. In its response, the association said:

“Decisions taken about a child’s life should only ever be based on what is in the best interests of the child as assessed by skilled and qualified social workers and the courts system. These decisions cannot, and must not, be subordinate to the pursuit of financial profit”.

In their response, the Government said:

“The proposals were concerned with improving the quality of children’s services rather than savings, ‘privatisation’ or profit-making”.

They inserted a prohibition on profit-making into the final regulations, which extended the children’s services functions that could be outsourced.

Local authorities are living in hard financial times that are likely to get harder rather than easier, as many noble Lords have pointed out. I do not believe that a single penny of what is allocated to protecting children and young people and keeping them safe should be diverted from that purpose. In ideal circumstances, of course, such services should be funded adequately to ensure that they are effective and timely, but what is absolutely clear is that no one should profit out of that allocation other than children.

The Minister said at Second Reading that the Government had no intention of removing the ban on profit in child protection. However, the 2014 regulations and Section 1 of the Children and Young Persons Act 2008 allow the outsourcing of many other children’s services functions. I would be grateful if the Minister clarified exactly what the Government’s position is regarding a profit ban on children’s services. Regulations are easier to circumvent than primary legislation, which is where I believe any ban should be. I beg to move.

[Baroness Walmsley]

My Lords, children’s social care services are some of the most important functions of local authorities and, of course, councils should be able to work with local partners to secure some elements of children’s well-being while retaining overall leadership and accountability for commissioning and delivery. But because of the mandatory duties, the majority of the experience and expertise in undertaking safeguarding work remains with councils. The complex and difficult tasks in child protection do not readily attract commercial or not-for-profit providers, and it is crucial that we do not create a situation where the easy or profitable aspects of children’s services are cherry-picked, leaving councils with an unmanageable portfolio of the really difficult services.

We had a briefing from the LGA, which believes that the introduction of a perceived profit motive into decisions about our most vulnerable children and young people risks undermining public confidence in this hugely challenging work. I agree with the association. It is significant that it has briefed us, because this work is difficult and costly, so it would have been easy for the LGA to leave things as they are and not encourage us to support an amendment that seeks to put this in the Bill. It is an indication of how seriously the LGA is taking this matter.

As we have heard, in 2014 the Government consulted on draft regulations which significantly extended the children’s services functions that could be outsourced. The responses at the time overwhelmingly disagreed with the regulations. The Association of Directors of Children’s Services pointed out that a local authority’s duty of care is not delegable, although of course its functions are. It felt that services designed to keep children safe should not be predicated on a profit motive. There is far too much temptation to cut corners where there is a profit motive, especially when budgets are tight and the funding of the contract is very challenging, which often happens. As the noble Lord, Lord Ramsbotham, has just said, such decisions should only ever be based on the best interests of the child.

The Minister told us in the meeting we had before the Committee began that the Government are not minded to remove the current ban on for-profit organisations but, unfortunately, that ban is only in regulations, which we all know are not difficult to remove by negative resolution. That is why I support this amendment to put the matter into primary legislation, because it is far too important to put it at risk.

[The Lord Bishop of Durham]

My Lords, I was pleased to add my name to this amendment and I support the arguments that have been put by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Walmsley. I want to add that this is about the best interests of the child, and children are the only ones who should profit from anything here. However, I add another concern. When we come to debate Clause 15, and the possibility of exemptions, I am slightly concerned that, if this measure is not in the Bill, such exemptions might be used as a way of circumventing the issue around profit and not for profit. I lend my support to this amendment.

Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Monday 4th July 2016 Grand Committee

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I shall speak to Amendments 30, 32, 40, 44, 46, 57 and 63, to which I have added my name. I support the noble Lord, Lord Ramsbotham, who has, I think, given all the detail that the Committee needs. I spoke on this issue at Second Reading.

It is important for government and all who have responsibility for looked-after children to recognise that they could have unidentified or unmet communication needs. This unidentified or unmet need could prevent children and young people understanding and engaging with the changes to their lives that are being proposed and therefore they could struggle to have a meaningful input into those decisions. A lack of identification and consequent intervention for those with communication needs could lead to a range of negative outcomes in relation to their health and well-being, education and training, employment and participation in society. In addition, as shown in the statistics given at Second Reading, it could lead to their involvement in the criminal justice system, as the noble Lord, Lord Ramsbotham, has already told us.

Those of us debating this issue today have good communication skills. Most of us cannot imagine what it is like not only not to understand what is being proposed for our lives but to be totally unable to respond in a way that adequately reflects the turmoil and uncertainty that we feel inside. Looking into the eyes of a child while explaining the processes and outcomes for them may assist those dealing with the child to tell whether the information has been understood. However, it is not a very scientific test, and it will certainly not assist the child or young person to respond if they have communication problems. Access to properly trained speech and language therapists is essential to ensuring that these extremely vulnerable members of our society are able to have a voice. Unless such help is provided, I fear that we will see statistics showing an increase, not a decrease, in the number of care leavers suffering from poor mental health and becoming prevalent in the criminal justice system.

Listening to the voice of the child is paramount. Children have a right to express an opinion on their care. Those providing help for young people about to leave the care system must be able to assess their ability to read and digest the written word, as well as the financial implications for them. As we discussed last week, this is essential in ensuring that they are able to budget and manage their money so that they do not fall into debt or find themselves facing sanctioning from the jobcentre or eviction from their accommodation.

I hesitated to use the word “illiterate” in Amendment 40, as labels, once attached to people, are often very difficult to shake off. Care leavers do not need this added stigma. They need help to overcome their difficulties, with information provided in a format that they can access, whatever that may be.

Personal advisers for care leavers up to the age of 25 should be properly trained in identifying and helping to overcome the communication difficulties of the young people they advise. Without this, there will be a huge gap in the support they are able to provide. Will it be up to local government to ensure that adequate trained support is provided? This should not be a charge on the local council tax payer; it should be properly resourced and funded by central government via the NHS. If the Government are serious about assisting care leavers to make the best of their lives, they will ensure that the funding is made available to cover the costs. I hope the Minister will be able to give us a positive response on this group of amendments.

[Baroness Walmsley (LD)]

My Lords, I have Amendment 35 in this group but I also support the amendments in the names of the noble Lord, Lord Ramsbotham, and my noble friend Lady Bakewell, which refer to speech and language issues, and I have added my name to them. As I said in the debate on an earlier group, these issues are vital and must not be ignored.

My Amendment 35 seeks to ensure that information about the local offer for care leavers is provided in a form that is accessible to all children. We must not assume that all young people leaving care are fully abled. There are children leaving care who have sensory impairments, although such young people may stay in care a little longer than others. There are those with physical disabilities that might make it hard for them to use the internet easily. They, too, want to lead independent lives with the right support. There are those with learning disabilities who may be quite capable of living independently with the right support but need someone with an understanding of their problems to interpret the information for them so that they can express their wishes about what they need or want to access.

--- Later in debate ---

Moved by

[Baroness Walmsley]

75: After Clause 3, insert the following new Clause—
“Duty of the Secretary of State
(1) The Secretary of State must promote the rights and well-being of children and young people in England mentioned in section 1(2).(2) In this section—“rights” means—(a) the Convention rights within the meaning given by section 1 of the Human Rights Act 1998;(b) the United Nations Convention on the Rights of the Child; and(c) other human rights;“well-being” means—(a) physical and mental health and emotional well-being;(b) protection from harm and neglect;(c) education, training and recreation;(d) the contribution made by a person to society;(e) social and economic well-being.”

[Baroness Walmsley]

My Lords, I beg to move Amendment 75 and shall speak to Amendment 135 in my name. Amendment 75 puts a general duty on the Secretary of State to promote the rights and well-being of looked-after children and care leavers. The state’s care of children unable to live with their families carries enormous legal, moral and financial responsibilities. Although local authorities are of course directly responsible for individual children, central government supports the care system through policy development and sourcing, as well as public awareness-raising to ensure public support for this serious duty.

That is why I believe that it warrants a general duty on the Secretary of State akin to those which exist in relation to health and education. While those two elements of service provision to looked-after children are really important, factors affecting where they are looked after and by whom, what therapies are provided, how they are involved with decisions relating to their care and how it is all paid for are also important enough to require a general duty on the Secretary of State in charge.

--- Later in debate ---

[The Earl of Listowel]

My Lords, I thank the Minister for his reply and for what he said about child impact assessments on child-related Bills. But is it not even more important in Bills about housing and welfare that there are such child impact assessments? Those Bills have a huge impact on children and their families and one does not get the sense that the impact on children is really thought through. American academics who come to this country talk about how important housing is to children and bewail the fact that there does not seem to be awareness at senior levels of government of that necessary connection.

[Baroness Walmsley]

My Lords, I am grateful to all noble Lords who have spoken to this group. I will not say much because I need to be in the Chamber for the dinner break business. I thank the Minister for his reply. This is not the first time that I have tried to get some incorporation of the UNCRC into UK law and I am sure that it will not be the last. We made progress under the coalition Government when Sarah Teather announced that all government policies would be scrutinised to make sure that they were compliant with the UNCRC. That is why I wonder why, on the front of the Bill, we have a compliance statement about the UN Convention on Human Rights, but no statement about compliance with the UNCRC. That would be a step forward. After Sarah Teather made that statement, I went to talk to civil servants in the Department for Education to ask them what was the procedure to make sure that every policy was compliant. They did not have one. I would be interested to know what the procedure is now, because that was five or six years ago. Let us hope that we have moved forward in that respect because unless we have a proper procedure for doing this, it will not always happen and we things will fall through the gaps. However, I said that I would not say much, so I will sit down and I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Wednesday 29th June 2016 Grand Committee

[Baroness Walmsley (LD)]

My Lords, I have Amendment 18 in this group, which adds wording about protecting safety and providing stability in home lives, relationships and education or work. It is very similar to the wording in proposed new subsection (1)(f) in Amendment 1, moved by the noble Baroness, Lady Howe.

Coincidentally, I also submitted the same amendments as the noble Lord, Lord Ramsbotham, to remove “have regard to the need” and the other amendments he referred to that follow from that—so of course I have added my name to those.

I wholeheartedly agree with the noble Lord, Lord Bichard—who would have been able to speak for himself if we had met on Monday as originally planned—that the whole point of setting out the corporate parenting principles explicitly is to make the responsibility explicit. That is most likely to be achieved if the drafting is as clear as possible. The inclusion of “have regard to” detracts from that clarity. It also changes the nature of the duty: it is no longer to encourage people to do something but to “have regard to” encouraging people to do something. How pathetically weak and feeble. I could have regard to something but decide to do nothing as a consequence of my regard. That will not do.

We need a set of corporate parenting principles that protect all those things that contribute to the health, well-being and future opportunity of children in care and those leaving care. That is why my Amendment 18 adds the principle of protecting their safety and providing stability in their home lives, relationships and education or work.

Children in care who are abused will be damaged for ever if we are not very careful. That is why we need to keep them safe. Children who are moved around from one foster placement to another and have no stability feel insecure and cannot keep up those relationships that help them to know who they are and their place in the world. The people they value and who value them are so important to their sense of self-worth and their attainment in life.

The Education Select Committee found that health services are turning away children in care who do not meet diagnostic thresholds. Access to services is prohibited when children do not have a permanent address. They experience moves in care, moves from one foster parent to another—or, even worse, moves out of their area. Problems include registering with a GP and poor communication between local authorities and clinical commissioning groups.

Designated health professionals report that they have not been asked to contribute to the strategic planning of services for these children, and some others felt that there were no robust routes for contributing to commissioning processes and decision-making.

Stability at home, school and in relationships is vital for these children and should be included in the principles. It is very important that the legislation is clear, so that those affected are in no doubt what their responsibilities are. The only people who benefit from confused or over-elaborate drafting are the lawyers. As drafted, Clause 1 is confused, and we must try to clarify it during the course of our deliberations.

Many noble Lords are seeking to add important additional principles, including my noble friends Lady Tyler of Enfield and Lady Bakewell of Hardington Mandeville. Their amendments on mental health and poverty alleviation will come later, and I support them wholeheartedly. But the point I am making is that these amendments, and others, would be to no avail if the principles just had to be regarded and not strictly adhered to. So I say to the Government: if you really believe in these principles as drafted—and, I hope, as amended by several important additions from me and others—please accept that the words “have regard to the need” must go.

[Lord Warner (Non-Afl)]

My Lords, I am probably one of only three people in this room who has actually been a corporate parent. Having worked in a local authority, I know that if you put wording in a Bill that says “have regard to”, the chief officer, who may want to do the right and proper thing by these children, will be put in a spot of bother. If a local authority and its lawyers see “have regard to”, they will have a conversation with the chief officer which will start: “Do you really have to do this, if the financial situation is tough and bad?”.

--- Later in debate ---

I hope that I have been able to provide enough reassurance to the noble Baronesses, Lady Howe and Lady Walmsley, and the noble Lords, Lord Bichard, Lord Watson, Lord Hunt and Lord Ramsbotham, on the corporate parenting principles and that they will feel able to withdraw and not move their amendments.

[Baroness Walmsley]

My Lords, just before the noble Baroness, Lady Howe, replies, the Minister mentioned on several occasions the 1989 Act, which has a very strong and clear set of principles and duties in it. The Minister has heard from many noble Lords that we feel that the way in which Clause 1 is worded is nowhere near as strong. Does the Minister agree that it is not as strong as in the 1989 Act? Which set of duties has supremacy? To have the duty on Clause 1 worded in a much weaker way than in the 1989 Act can benefit only lawyers; it introduces confusion.

[Lord Nash]

With respect to the lawyers present—including myself from many years ago—I will not comment on the last point. We are trying to set out principles and not put local authorities under any more duties than necessary or into any kind of straitjacket. But the noble Baroness makes a point about a number of duties and we will go back and look at this in more detail.

--- Later in debate ---

[Baroness Hodgson of Abinger (Con)]

I shall speak to Amendments 23 and 25, and I support the amendments of the noble Baroness, Lady Massey.

The noble Earl has raised the issue of siblings. For children separated from their parents, siblings may form their next-closest relationships and therefore, wherever possible, we must also seek to avoid the separation of siblings. This can have devastating effects on those who have already undergone the suffering of being removed from their homes and filtered through the social care system. Many describe knowing they have a sibling that they are separated from as having a piece of themselves missing.

Your Family, Your Voice, which briefed me, states that currently 50% of sibling groups in care are split up. I find that an astonishing statistic. We sometimes read stories in the papers about siblings who were adopted and find their brother or sister later in life. Do we really think it is acceptable to be creating situations like that in this day and age? I accept that from time to time there may be a case for splitting up siblings, where one is very disruptive or has a detrimental effect on other siblings. However, the normal situation should be that priority is given to keeping siblings together—and, if it is considered desirable to split them up, the local authority needs to explain the reason why it is doing so.

It is important that we listen to what children want, and facilitate it. With regard to Amendment 25, where it is clearly unsuitable for a child to remain with their parents, relatives or close friends may be able to step in to prevent them having to be taken into care. For a child, being taken away from their home, whatever their circumstances, must be highly traumatic. However, where they are going to live with a friend or relative who is already known to them, this will lessen the strain and upset, and in many cases will mean that the child is raised within their family.

There are an estimated 200,000 children being raised by kinship carers, 95% of whom are not classified as looked after. The briefing that I received from the Kinship Care Alliance, which I understand is serviced by the charity Family Rights Group, stated that,

“children in kinship care are doing significantly better than children in unrelated care, despite having suffered similar early adverse experiences—in particular they feel more secure and have fewer emotional and behavioural problems and are doing better academically”.

So this approach also has the economic benefit of savings for the state if the child is not taken into care, although I understand that at present kinship carers are not being given any financial help. This aspect needs to be looked at. Having an extra child or children in the house may create financial hardship in terms of both needing bigger accommodation and having more mouths to feed. I understand that a large percentage of kinship carers have to give up work to take on the extra children. It would therefore be helpful to give them some support. I understand that local authorities often seek close relatives and friends to look after the child, but I would like to see in the Bill that this has to be done and considered, because it seems to be a much preferable outcome for the child.

[Baroness Walmsley]

My Lords, I am afraid that my Amendment 24 in this group would add further corporate parenting principles to Clause 1. Like the noble Baroness, Lady Hodgson of Abinger, I want to add the principle that siblings should be kept together as far as possible. If they cannot be fostered or even adopted together, at least they should be located as close as possible to each other and arrangements made for them to have contact if they want it. That last point, made by the noble Baroness, Lady Hodgson, is absolutely right: we have to take account of what the child wants in relation to his or her siblings.

Many children who suffer the trauma of the break-up of their family and being taken into care rely very much for their emotional well-being on the support of their siblings. I know that most local authorities do their very best to ensure that they can be together as much as possible, but it is not easy to find foster parents who will take more than one child, or a group of two or three. If we are laying down corporate parenting principles, it is vital that sibling issues are in there. Emotional well-being is important for educational attainment and success in life, and we let children down if we ignore it. Although it is mentioned in Clause 1(1)(a) of the Bill, we need to be more specific about how that well-being should be achieved on a matter as important as siblings.

Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Tuesday 14th June 2016 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, there is much to welcome in this Bill. It is a genuine attempt to make life better for our most vulnerable children. However, we must not forget those children outside the scope of the Bill who are living terrible lives but have not yet reached the threshold that would lead to them being taken into care. I agree with my noble friend Lady Pinnock that this is an opportunity missed. I would like to focus on four of the many issues that I could mention—corporate parenting, mental and physical health, safeguarding the rights of children, and learning from cases when something has gone wrong.

First, I welcome the Government’s attempt to lay out the responsibilities of the corporate parent, though I endorse what my noble friend Lady Pinnock said about the need for clarity about who that is. Unfortunately, as they stand, the principles are weaker than existing duties under the Children Act 1989 in respect of looked-after children. In Clause 1, local authorities must only,

“have regard to the need”,

to act in accordance with each of the principles. Yet separate, stronger duties already exist, though not for care leavers. Surely, all we need to do is to add care leavers to existing principles. There are things missing, and some of them have been mentioned, such as the importance of keeping siblings together; valuing children and young people’s backgrounds and personalities; and the promotion of the rights and entitlements of children and young people and their full and equal participation in society.

I agree with the NSPCC that it is essential for this clause—which, after all, is a list of what children have a right to expect from corporate parents—to include a responsibility to support recovery from the trauma of abuse or neglect. Over 60% of children enter care due to abuse or neglect, and the trauma of these early experiences can have a significant impact on long-term life chances.

The NSPCC has recently highlighted the shocking lack of therapeutic support in its new campaign, It’s Time. I have been in Your Lordships House now for 16 years. I clearly remember, soon after I came in, going to a presentation about the lack of therapy for children who had been sexually abused. This is not a new problem; it really is time it was addressed, because failure to address it ruins lives and costs the state money.

Neglected children often suffer poor physical health, through physical abuse, a lack of a good diet, et cetera. Along with that go mental and emotional health problems. It is crucial for these children that all their needs—physical, mental and emotional—are addressed together. It is not enough just to feed, clothe and educate the children if we are to compensate them for what they have gone through, and prepare them for the adult world. Therapeutic support to recover from past abuse or neglect must form the bedrock of the care experience.

As my noble friend Lady Tyler of Enfield said, current statutory guidance requires that children entering care receive a physical health assessment by a trained clinician. However, mental health and emotional well-being are assessed only through a strengths and difficulties questionnaire. I agree with her that this is both insufficient and carried out by the wrong people. Children need a full assessment of their physical and mental health when they come into care, as well as continuing services to address their problems all along the way.

Going back to the corporate parenting principles, I have another point to make. I welcome the bits that encourage children to express their views, wishes and feelings. It is nice not to have to badger the Government any more about including something about children’s wishes and feelings in a Bill. However, I would like to make two more points about Clause 1. First, many of these children will have speech and language difficulties. It is essential that these difficulties are identified during their health assessment and speech therapy provided. Otherwise, they will struggle to express their wishes and feelings; they will not have the skills to do so. Secondly, children need information about the local offer and their entitlements in a format they can understand. Their foster parents need that too in order to provide the stability children need.

I now move to the plans for the new Child Safeguarding Practice Review Panel. This panel will have the duty to identify and review those serious child protection cases in England that raise issues deemed complex or of national importance. Well, they are all complex. I listened very carefully to what the noble Baroness, Lady Meacher, expressed about her concerns. I think it is justified for such a panel to look at those cases that appear to be of national importance. However, any new system must ensure that lessons are disseminated and incorporated into meaningful changes in practice. The panel will be judged on how well it does that. Given the difficulty in disseminating learning from serious case reviews in the current system, how will the Government ensure that the learning from national reviews trickles down and creates a process that delivers better safeguarding practice on the ground?

Secondly, as I suggested a moment ago, there is a danger that the establishment of two parallel processes—with local learning reviews at one end and the national review panel at the other—could lead to a two-tier system. That is highly undesirable. Can the Minister say what steps the Government will take to ensure that local practice review panels are not considered a lesser counterpart to the national review panel? After all, they know their local area, their local children and local circumstances. How will thresholds for consideration by a national review be determined, and by whom? As to the criteria for the involvement of the new panel, would not greater protection be provided by broadening the definition of harm? This could be developed from the definition of harm already contained in section 31(9) of the Children Act 1989. I think that the definition should include physical injuries and harm caused by unlawful or abusive restraint. This is a national issue. The vulnerability of children to such abuse was graphically illustrated by the BBC “Panorama” programme on the Medway secure training centre earlier this year, and here we have an opportunity to address it.

On the matter of innovation, I welcome the Government’s determination to improve outcomes for children, but I confess to having serious concerns about the measures in the Bill and we will be looking for assurances and safeguards for children’s rights. I worry that the proposals set out in Clause 15 are too broad and could be used by cash-strapped local authorities—for which we have great sympathy—to avoid carrying out some statutory duties. Those duties were put in place for a purpose, usually by Parliament, and they comprise the rights of children in law in respect of their care. We tamper with them at our peril.

To exercise the new powers, the Secretary of State would have to introduce regulations. However, these could be approved without a debate and vote in Parliament, which is a matter of concern. I support the concerns raised by the noble Lord, Lord Watson of Invergowrie, and others regarding the skeleton nature of this Bill. This appears to be a trend. We need a lot more information before we can carry out our duty to scrutinise. Where exemptions are made to legislation which was passed with active parliamentary approval, these must be subject to appropriate parliamentary scrutiny and agreement, specifically through affirmative resolution.

I would like to know who will be consulted before exemptions from statutory duties are made. Will the responses be published? What are the criteria for judging whether this would improve children’s outcomes? Could this judgment be made by an independent body? How will progress over a three-year pilot period be monitored, and will this oversight come from an independent body? For instance, if a local authority is exempt from Ofsted inspections, how will we know that outcomes for children are improving or are neutral? Can the Government guarantee that directors of children’s services and lead members for children will remain accountable under the new proposals?

Under Clause 18, this system would also apply where a local authority was failing to perform its duties and the Secretary of State had already intervened under Section 497A of the Education Act 1996. Currently too many vulnerable children are failed by the system. For every child subject to a child protection plan or on a register in the UK, it is estimated that around eight other children are likely to be ill treated. How can we be sure that the exemptions being called for will improve these failing authorities? Is it really the duty to carry out statutory duties that is getting in the way of improving quality or is it more likely to be management failures, a poor corporate culture, poor multiagency working or one of the other possible causes, such as workloads or case loads that are too heavy? What is the Government’s evidence of the need for these enabling powers, and will they demonstrate in each case how the exemption will lead to better outcomes for children? I think that we need some examples. There are many issues of concern in relation to this part of the Bill.

Before I finish, I want to say a brief word about the idea put forward by the right reverend Prelate the Bishop of Durham concerning the regulation of social work. I am very attracted by his suggestion of a royal college but it would absolutely have to be independent. I just wonder what would happen if the Government said that they were going to set up the BMA and decide who was to be on its council. There would be a riot. I think that we ought to provide similar scrutiny of the suggestion of the Government setting up the regulation of social workers.

Queen’s Speech

Baroness Walmsley Excerpts

Thursday 19th May 2016 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, before turning to the gracious Speech, I first echo the thanks of the Lord Speaker to the noble Baroness, Lady Thomas of Walliswood, and the other three colleagues who have ceased to be Members of this House today. To my personal knowledge, the noble Baroness was an excellent and very hard-working Peer in this House when she was in full health. She made an enormous contribution to the work of these Benches, and I am quite sure that the other noble Lords mentioned had a similar track record. I would not have felt it necessary to make these remarks had it not been for the rather unfortunate laughter after the announcement earlier, which our ex-colleagues and their families may have found somewhat hurtful. I am sure that the House did not mean any disrespect.

On these Benches, we welcome much of what was in the gracious Speech, especially those items that have been Liberal Democrat policy for some time. Of course, we will scrutinise the measures very carefully when they are put before us. Noble Lords will hear from my noble friends on these Benches about various topics today. My own remarks will be addressed to health and social care, although my noble friend Lady Brinton will say more about the latter.

When I heard the gracious Speech, I did not know whether to be astonished that there was hardly a mention of the NHS or glad that the Government were not planning another disruptive top-down reorganisation. This morning, there is a Statement in the other place about progress at last with the junior doctors’ contracts but we have no Health Minister in this debate in your Lordships’ House. I asked for the Statement to be taken in this House, but I was refused by the Chief Whip. The noble Lord, Lord Prior, has been such a trooper, patiently standing at that Dispatch Box week after week reporting that there was nothing to report. Then, on the very day when there actually is something to report, the noble Lord is not allowed to answer our questions. That is treating your Lordships’ House with contempt and it is treating the health service with contempt.

I hope that the Minister, when winding up, tells us what will happen next and why, when it is now possible to make arrangements to protect women doctors who wish to take maternity leave or take time out for training or research, it was not possible to do that a long time ago. Why, if it is possible now to make some small concessions to the quality of life of doctors and their families, was it not possible to do that before? Why, if it is not just about money, did we have the Secretary of State telling us this morning on the BBC that it will cost hospitals one-third less to roster doctors at the weekend? At least the gracious Speech contained a further commitment to mental health, but my noble friend Lady Tyler of Enfield will express our concerns that the commitments made during the coalition Government have not been followed through.

As to the proposals to charge non-resident visitors to the UK for health services, we will wait for the details before we comment further. However, our main concern will be that no one in the UK should go without the healthcare they need.

It has to be said that the past 12 months have not been the NHS’s finest hour, and certainly not the finest hour of the Secretary of State. This is not because NHS staff are not working hard or because they are not working at weekends, because they have been, but rather it is the failure on the part of the Government to be realistic about the legitimate health and social care needs of our population and the right of those who work in these services to be properly paid and have a reasonable work-life balance. While I accept Jeremy Hunt’s personal commitment to patient safety, he has not gone about it in the best way. The industrial action taken by junior doctors over the past year is only one, although a very serious one, of the indications that health and social care services are at full stretch. The whole debacle has been damaging to the morale of the health workforce, and the Government will have to work hard to regain its confidence.

It never was just about money, it was about being constantly asked to do more with less, or at least the same amount. While I do not deny the right of the Government to make a commitment in their manifesto and then try to implement it, I believe that the way they have gone about it has been a disaster. Governments should be very careful about the factual basis on which to build their policies. There have been several expert reports, including a recent one by a health economist in Manchester, which have questioned the weekend death rates quoted by the Government as being the basis for what they are trying to do. We shall see how the members of the BMA vote, but I hope very much that this matter can now be settled in the interests of patients and doctors.

The pressure does not apply only to junior doctors in hospitals. GPs are also hard pressed. I shall quote from an email I received recently from a GP known to a friend of mine: “I was working from home last Sunday night going through results, patient records and letters. Tim was also on the system from home and Dan was in the surgery doing administration. We are working 12-hour days in the surgery as it is and we really do not have the capacity to do seven days on top of what we are doing now and remain healthy. We are also working on our frailty project, plus looking to see if we can expand the premises. As you can see, I am juggling lots in addition to the daily seeing of patients. These other bits do not get registered: talking to social services, carers, families and patients, looking at the systems in place for clinical safety, multi-disciplinary meetings, emails, keeping up to date and more”. That could be echoed by GPs all over the country. I am lucky that I live in an area where my GP is able to give me a good service, but in some places, especially in London, patients have to wait weeks to get an appointment.

This is the result of bad planning. It takes eight years to train a GP, so today’s needs should have been planned for years ago. Unfortunately, the planning of training for health professionals has been fragmented and everyone blames everyone else for shortages. Now the Government even want to charge a £1,000 skills levy on visas for health workers from overseas. That is crazy and it certainly is not joined-up government. Sadly, the system is playing catch-up all the time. Targets are being missed, deficits have skyrocketed and will swallow up most of the new money announced last year. The Government will not recognise the real black hole in funding and believe that the hard-pressed workforce can make £22 billion of savings in the next few years when it is struggling just to stay afloat.

Then, of course, there is the equally serious shortfall in social care funding. The recent NHS ombudsman’s report on unsafe discharges from hospital with non-existent or inadequate social care packages made for very sad reading. Frail, elderly people are being discharged to cold homes, left alone at night and their families not informed. This should not be happening in this country in this century, and it is no good saying that guidelines were not followed. No one in the NHS would do something like that deliberately, but the pressure on beds through delayed discharges sometimes causes people to make mistakes—fatal mistakes in some cases.

The pressure on the NHS could, of course, be lessened in future if we paid more attention to prevention, yet the Government had to be led kicking and screaming into agreeing some kind of sugar tax to reduce child obesity. The measures announced lack ambition. They should be broader and introduced sooner, but at least they are something. But where is the long-promised child obesity strategy? And what about putting fluoride in all our drinking water to prevent children getting tooth decay and having to go into hospital for extraction? What about fortifying flour with vitamin B to prevent neural tube disease? What is being done about the quality of the air we breathe? Why did Boris Johnson suppress the report about the terrible state of air pollution in London? We need to be told. Then there was the further cut in public health spending, attacking the very local services that help people to stop smoking, get active, avoid unwanted pregnancy and all the other things that local authorities try to do for their residents. This is all so short-sighted, but, if it were reversed, what a difference all these measures would make to rates of heart disease, stroke, diabetes and the sustainability of the NHS.

Savings could also be made on the drugs Bill. I wonder whether the Minister will tell us what progress is being made with the recommendations of the noble Lord, Lord Carter, on that. Will she also assure us that the Government will take notice of the recommendations in the report from the noble Lord, Lord O’Neill, published today, on the actions that must be taken nationally and internationally to combat the over- prescribing of antibiotics and the consequent rise of antibiotic-resistant micro-organisms—a global disaster waiting to happen?

What else should happen? We need some straight talking about the funding and capacity challenges our NHS faces and the steps needed for positive change. So although much of what needs to be done in health does not require the signature of Her Majesty, the Liberal Democrats propose a future of healthcare Bill to find solutions to these challenges, independent of interference from political parties, so that the NHS can continue to deliver health and care for future generations without detriment to its hard-working staff.

Children: Drugs

Baroness Walmsley Excerpts

Monday 11th April 2016 Lords Chamber

[Lord Nash]

Drug education is a statutory part of the new curriculum for science at key stages 2 and 3. Teachers are best placed to understand the needs of their pupils and it is for them to develop their own PSHE programmes, drawing on resources and evidence-based tools such as ADEPIS, which provides accurate, up-to-date information and resource on what works. In March last year, we published a PSHE review of what works best in drug education and the PSHE Association has an excellent programme of study on drugs.

[Baroness Walmsley (LD)]

My Lords, does the PSHE curriculum include comparisons of the health harms of drugs such as alcohol, tobacco, heroin, cocaine and cannabis, including the numbers of people who die every year from their use? If the Minister does not have the figures to hand, I would be grateful if he wrote to me.

[Lord Nash]

My understanding is that this programme of study is very comprehensive, but I will write specifically to the noble Baroness on this.

Schools: Food Nutrition Standards

Baroness Walmsley Excerpts

Thursday 11th February 2016 Lords Chamber

[Lord Nash]

The guidance is now provided by Public Health England.

[Baroness Walmsley (LD)]

The Government are undermining free school meals for up to key stage 1, which was a Liberal Democrat achievement in the coalition Government, by starving the programme of cash. Why are the Government going to remove the grants to small primary schools that enable them to deliver these hot meals to children? How will that help nutrition for those children for whom this is the only decent, nutritional meal they get in the whole day?

[Lord Nash]

My Lords, the noble Baroness is quite right that we have paid an extra £33 million to small schools to enable them to engage in this programme. It was always intended as transitional funding to help schools put their service on a sustainable footing and we believe that that has been done.