Religious Education in Schools

Lord Warner Excerpts

Thursday 18th January 2024 Grand Committee

[Lord Warner (CB)]

My Lords, I declare my interest as a member of Humanists UK and a former chairman of the all-party parliamentary group on humanism.

I agree with much of what the noble and right reverend Lord, Lord Harries, said, but I believe the problems on this issue are more fundamental. The UK population’s commitment to religion has seriously changed since my teenage refusal to chant the Lord’s Prayer in school assembly. In 2021, the British Social Attitudes survey revealed that 53% of the population had no religion. Only 12% said they were Anglicans, with young people making the biggest shift to secularism: 68% of 18 to 24 year-olds belonged in no religion, with just 18% saying they were Christians. Only 0.7% were Anglicans. Church of England support among young people is in free fall, with no evidence that this shift will be reversed. The 2021 census points in the same secular direction.

Yet the Church hierarchy, Parliament and educational policy-makers seem unwilling to recognise this new reality. This House still insists on starting proceedings with Anglican prayers, and we still have 26 Anglican Bishops here by right. As a House, we badly need to face up to the implications of this fundamental population shift to secularism. It calls into question both the state’s funding of religious schools and the curriculum and practices of non-religious state-funded schools. There is now no justification, in my view, for compulsory daily acts of Christian worship in the two-thirds of state schools in England and Wales that are not Church schools. There are big question marks over the way in which religious belief is taught in these schools, and curriculum change is inevitable.

I appreciate that tackling the issue of Church of England schools is difficult but, even without tackling this contentious issue, other—quite major—reforms are possible. We could and should abolish compulsory acts of Christian worship in schools, and we should move to teach an independently devised and more broadly based national education curriculum, as others have suggested, on faith and non-faith beliefs. This House might like to set an example by changing some of its own religious practices.

Unregistered Schools

Lord Warner Excerpts

Wednesday 5th July 2023 Lords Chamber

Asked by

[Lord Warner]

To ask His Majesty’s Government whether they intend to re-introduce legislation to close down unregistered schools and, if so, when; and what further safeguarding action could be undertaken until any such legislation is passed.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran)]

My Lords, it is already an offence to conduct an unregistered school. The Government will always prosecute when it is in the public interest. We work closely with Ofsted to make effective use of its current powers to investigate unregistered schools. We recognise that improved powers would better enable effective action, which is why we intend to introduce legislation in this area at the next available opportunity.

[Lord Warner (CB)]

My Lords, I note that particular response, which is not at all unexpected. I assume that the Minister and her colleagues are familiar with the report of the Independent Inquiry into Child Sexual Abuse and the recent Bloom Review, both of which reveal widespread child sexual abuse in religious settings. Well before these reports, the Government knew as long ago as 2015 that Ofsted lacked the enforcement powers needed to deal with these unregistered religious schools. Given the urgency of this situation for vulnerable children at serious risk of harm, will the Government commit to legislation on religious schools in the next Session? If they cannot do this, will they perhaps consider supporting and helping a Private Member’s Bill on this subject to strengthen Ofsted’s powers? In the meantime, will DfE encourage Ofsted, social services and the police to take stronger safeguarding measures in respect of the most concerning religious schools?

[Baroness Barran (Con)]

The noble Lord raises a number of important points, and I think he would agree with me that the vast majority of religious schools deliver a safe and very valued service to the children and families they work with. But of course he is right that there will be safeguarding exceptions in every setting and every community, and we are determined to address those when legislative time allows.

Home Education (Duty of Local Authorities) Bill [HL]

Lord Warner Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 27th April 2018 Lords Chamber

I am sorry if this sounds like a Second Reading speech—I have apologised for not being there—and I hope that I am not ruffling too many feathers. I know that there are a lot of education professionals in the House—I often listen to them and wonder what I am doing here—but I think my daughter’s work and her success qualifies me to stand up and say to your Lordships that the Bill is a nonsense. I say that about the way it is expressed; I am not saying that anything done by the noble Lord, Lord Lucas, is a nonsense. If noble Lords generally think that recalcitrant children will benefit from being educated at home and that this will answer all the questions—in a way, I agree to an extent with what the noble Lord, Lord Adonis, said—they are living in cloud-cuckoo-land. We have to identify the children, of whom there are plenty, who want to be different but have to break out of the prison they have been in with their families and because of their lack of success in school. In fact, from the children my daughter has dealt with, who have produced these remarkable films, one young boy—who was totally out of control—has now been accepted at a drama school as a potentially successful actor. My daughter has been asked by a number of drama schools to talk to them about what she has done with excluded children, because the pupils—not the teachers; we all know what teachers are like—are very impressed and fascinated that children from such backgrounds have broken the chains of deprivation.

[Lord Warner (CB)]

The noble Lord is making a very interesting discourse but can he explain how it has any connection to the Bill of the noble Lord, Lord Soley?

[Viscount Falkland]

Absolutely. The connection, which may upset people, is that I think the Bill is total nonsense in the way it is being followed through. I do not think that the teachers of this nation, most of whom are very dedicated people, are meeting the requirements—which they could do if they “get real”, to use the phrase of the noble Lord, Lord Bilimoria, again. My daughter, through what she does, has put around 100 young people into a new frame of mind, having lost all their instincts for violent reaction and such things. That is the way forward.

--- Later in debate ---

[Lord Soley]

I am quite interested in the argument that the noble Lord, Lord Lucas, has put. We have had a number of discussions on areas such as this and he has been extremely helpful. The only point that I have had made to me is that there is a problem with the definition of full-time and part-time. However, the noble Lord has made the point that this is something the Minister’s consultations and discussions should take into account. That would be helpful and I have no objection to it in principle, although there may be difficulties about definition.

[Lord Warner]

I hesitate to stop progress and I apologise for not speaking at Second Reading because I was otherwise detained then. As the Minister knows, for some time my concern has been—I think this was a concern of previous Ministers in the department—the overlap between home education used inappropriately, unregistered schools and unregulated madrassas. I am normally an enthusiast for definitions in legislation because they introduce clarity. On this, I am a bit less certain. I am not clear—I would very much welcome the views of the noble Lords, Lord Lucas and Lord Soley, here—about whether this set of amendments, excluding Amendment 28, would make it easier for someone who had a child who was flitting between home education, an unregistered school and a madrassa to use this definition to carry on doing that, because they did not meet the requirement of the length for “home education”. I wonder whether there would be an escape route for people doing that if we accepted this precise definition, but I would very much welcome the views of the noble Lords on that issue.

[Lord Lucas]

My Lords, these definitions are by way of illustration only, and I entirely accept the questions that the noble Lord, Lord Warner, asked.

The group of amendments that includes Amendment 12 takes another look at this. I am very much in favour of the Government taking advantage of the Bill to make clear their power to stick their nose into any and all educational situations and arrangements that might give them safeguarding or radicalisation concerns. There should not be any hesitation by local authorities in getting to know what is going on somewhere where they do not know what is going on. I would very much like the final version of the Bill to deal with that, but I will come on to that more under Amendment 12. I utterly support what the noble Lord, Lord Warner, said.

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[The Deputy Chairman of Committees]

My Lords, I must inform the Committee that if Amendment 7 is agreed to, I cannot call Amendments 7A or 7B by reason of pre-emption.

[Lord Warner]

My Lords, I strongly oppose the amendment. I do so because the noble Lord, Lord Lucas, seems to be arguing that because we cannot have the perfect system, we should not take a few steps along the road towards such a system. There have been long-standing problems in the whole area of vulnerable children, which the Children’s Commissioner has identified, which would be helped a great deal if the Government could press on with a common identifier for children. The Minister has heard me banging on about this from time to time—I never miss an opportunity to bang on about it—but there is an issue of how the state joins up information about children who may be vulnerable in a number of ways.

Anyone who has been involved in public policy and seen the growth in the number of children claiming to be home educated would be worried whether there was abuse in that system. The sheer growth in numbers and its rapidity should make you anxious as a public policy person, whatever your politics, whoever the Government in power are. The noble Lord, Lord Soley, is trying to address that issue. He may not be solving all the problems of childkind, if I may put it that way, but he is trying in a practical way to tackle one element of the area of vulnerable children. We should not handcuff him in that effort by supporting the amendment.

[Lord Storey]

This is an opportunity to, and I hope the Government will, consider the points made. It is shocking that we have hundreds of thousands—well, not hundreds of thousands, but thousands—of children missing from our education system and no idea where they are. No society should allow that to happen. When teaching started, there were school rolls. A pupil’s name was put on the school roll, there was an annual census, the local education authority collected all the details and they were submitted to the then Department of Education.

During the Labour Administration, there was concern about missing children, so they brought in what was called the unique pupil number. The idea was that when each pupil started schooling, they would have a number which would follow them through the education system so you would know where they were, they would not go missing, they would not fall off the cliff. I was quite comfortable with that and thought what a good idea it was, but it did not work in practice. I recall from my final years as a headteacher a particular issue with a pupil and a family. The family took the pupil out of the school, went to see the local authority, did not get the school they wanted, so moved to a different authority. I wanted to find out what had happened to this pupil. There was information about his progress, special educational needs—a host of information that the receiving school should get. Nobody had a clue where he had gone. It was a legal requirement that a receiving school had to use that unique pupil number, but he just vanished and was never heard of again in the education system.

I did not realise that if a pupil went to an independent school, that number does not go with them either. There is a whole area here that we need to understand. I am not suggesting a Big Brother or Big Sister, but we need to ensure as a society that we know that our children are safe, not being put in vulnerable positions, and part of that safety is understanding the progress of their education and where they go.

--- Later in debate ---

[Lord Lucas]

My Lords, I am very attracted by the amendment proposed by the noble Baroness, Lady Whitaker. It is a very good approach. I urge on my noble friend the Minister, if they are going down this road, that they should make at least the core of it a national film—because why do we want widely different practice towards home educators and attitudes towards home education across the country? I do not think that we do. It is a common problem and there will always be a local gloss on it—particular local facilities and local people and services that need to be drawn attention to. But the basic message that the noble Baroness outlines ought to be something we deliver consistently and across the country, and it should link through to the obligation to provide advice, which the amendment proposed by the noble Lord, Lord Storey, addressed. That is obviously important. We are dealing with particular sets of circumstances—we are dealing with parents who are not expert in the system. Absolutely, they need showing the way through.

Something we might well combine with this educational, supportive attitude to people who are entering into home education is keeping their place open at the school they are thinking of leaving. That can be a really difficult thing. It seals them into home education and seals them off from ways back into the state system if, by coming off-roll in the school and entering into home education, they lose their right to get back into that school. I really do not think it should be such a cliff edge; we should provide a continuing right of the parent to get back. After all, in most cases, the school will still receive funding for the balance of the year for their place, and it absolutely should not be closed off to them. We need time to allow parents to make an informed decision. Many will already have satisfied themselves that they want to do it, but others this is happening to rather willy-nilly, and they ought to have available to them advice, support and time for proper consideration.

I am grateful to the noble Lord, Lord Storey, for touching on the subject of flexi-schooling in his amendment. That is a very interesting way forward. I was encouraged by what the Government said in their consultation, in that it seemed to open up the idea that they might support it. There are some necessary changes to be made, and it ought to be easy for a school to indicate in their returns that a child is being flexi-schooled. At the moment, there is no code that they can use for that purpose; in one way or another, they have to tell an untruth—either they have to say that a child is full time or that the child is absent with leave, whatever else the case might be. There ought to be a way. It signals, as the earlier amendment proposed by the noble Lord, Lord Solely, signalled, the acceptability of flexi-schooling if the Government make provision for it in their coding systems. We shall come on to my views on that in a later amendment.

The noble Lord, Lord Warner, says that we absolutely need registration. I think that we need registration if it is going to achieve something. In all the collection of children whom we do not know about, the children who are being home educated are probably the least vulnerable. By singling them out we are saying, “In some way we think you are the worst—in some way we think you require special attention. In some way, we do not trust you above all others. You are much worse than those who have just been left to wander the streets”.

[Lord Warner]

Can I just explain my position on this? I speak as someone who spent six years as a director of social services safeguarding children, and I came to an eternal truth at the end of that. The more that children are outside any kind of supervision, the more vulnerable they are to abuse. It is actually a truth that has been validated in many hundreds if not thousands of cases. We know nothing about the children who are in home education, but the fact is that those numbers have grown very rapidly over the last few years. I am not making any kind of allegation that children who are home schooled are being abused, but in those circumstances, we need to get a better fix on this subject —not just for educational reasons but, I would suggest, for safeguarding reasons as well. That is not the purpose of the Bill, but it is an assistance in the safeguarding area as well. That is why it ought to be a very clear statutory requirement to register home education, which the Bill as drafted provides for.

[Lord Bird]

Maybe this is not the place to broaden the discussion about home education, but it is so interesting. The late Tony Benn put his children through a wonderful school called Holland Park comprehensive, and the moment they left school they were then ferried to extra maths, extra history and extra this and that, and were taken to their grandfather’s at the weekend to read all his books. There is a concept that we are all involved in the home education of our children, if we follow Tony Benn—and we have a duty. I am a bit worried that we are narrowing down home education to just this period, and I would like it to be broadened out. As far as I am concerned, when you are a parent, you are an educator, and you should be given the chance to create as many opportunities as possible.

The noble Lord talked about what happens when children are let outside of control, but the problem is that sometimes when they are in control they are abused—they are not developed properly. One reason why people like me back home education is that it gives you the chance to bring out of your children things that would never come out, even in the best school in the country.

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[Lord Soley]

I do not wish to take up the House’s time on this, because I am conscious that there is another Bill to follow this one, and time is tight. I hear the arguments of the noble Lords, Lord Lucas and Lord Addington, on this. I talked yesterday at some length to the noble Lord, Lord Addington, about it, and I understand the problem of being too prescriptive. After our talk, I remembered that some months ago I looked at the possibility of having an appeal system for when things go wrong between home-educating parents with their child and a school or educational authority that is challenging the way they are doing it. I would not rule that out. However, again, that is too complicated to go in a Private Member’s Bill. I know the Minister is in listening mode on this, and perhaps this is one of those areas to which we ought to pay some serious attention. Although it is not a matter for the Bill, it needs serious consideration.

[Lord Warner]

My Lords, I strongly support Amendments 16A and 19A, tabled by the noble Lord, Lord Storey. We cannot ignore the risks associated with this, as the noble Lord, Lord Storey, said, which is why Amendment 16A is important. It is also important that, if there is evidence that a child is going to an unregistered school, someone should be notified of that so that action can be taken.

[Lord Lucas]

My Lords, to pick up on the amendments proposed by the noble Lord, Lord Storey, it seems sensible that a local authority should be able to know whether a parent who is home educating would pass the DBS test. However, we have to recognise that we let these people be parents. There is no bar on somebody who has committed one of these crimes having children and bringing them up. So far as I know, local authorities have no special responsibility to supervise their activities at home as parents or to otherwise inspect them. Would the noble Lord feel comfortable if we were to impose, as a matter of course, a requirement that everyone who has a conviction that might bar them from working with children should be inspected before they are allowed to have children?

At what point does being comfortable with them bringing up their own children make one uncomfortable with them educating their own children? Why does that give the noble Lord cause for concern? If these children are seen as a matter of course in the way that they would be at school because the local authority provides a proper level of support and is therefore content that the education is proceeding happily—

[Lord Lucas]

I am entirely comfortable with that and I have been through the process myself in the context of working with children. However, we do not require this of parents. As the noble Lord, Lord Bird, pointed out, parents do a lot of educating outside school hours anyway. I do not see—

[Lord Warner]

Perhaps I may clarify that. Amendment 16A refers to “other adults”; it does not say “the parent”. I gently suggest to the noble Lord that if you leave your child unsupervised with a childminder for a number of hours in the day, the sensible thing is to check whether the childminder has been safeguard-checked. I suggest to the noble Lord that the noble Lord, Lord Storey, is simply saying that, if in home education you find another adult who does some teaching, probably in an unsupervised way either in the home or elsewhere, they should be safeguard-checked. That seems a sensible arrangement that many thousands of parents go through all the time when their children are looked after by somebody else.

[Lord Lucas]

My Lords, I appreciate that we are near a borderline and that this is a matter for discussion, but a lot of the people whom a home educator leaves their children with are other home educators, as it is a way of sharing the burden. On many occasions I have sent my child off to spend a play day or night in the company of a friend’s child without having the parents checked to see whether they have any relevant convictions. One should be conscious that this is an area where we are quite comfortable to rely on personal judgment. It tends to be when you are putting your child in the company of strangers that you want to know that they have been properly checked, particularly those who are part of an institution where they might expect to deal with children on a regular basis. I am very comfortable with that system but I do not think we should start letting that intrude into personal decisions about with which of one’s friends one should let one’s child spend time overnight in their house or spend time with their children being educated by the parent.

A border seems to be being drawn here on the basis that in some way home educators are worse or more risky than the rest of us. Not only is there no evidence for that but it is entirely unjustified to say it. I keep feeling that people say it because they are different: “They are not people like us and therefore we’re suspicious”. I hope that in many aspects that is something that we can educate ourselves out of—we should not allow ourselves to slip in that direction. Therefore, I feel that the noble Lord’s amendment goes too far, although I understand what he says about it. However, I do not think that it fits with the general pattern of home education.

We will come to the subject of unregistered schools in a later group, and that seems a substantial problem to address. Effectively there are institutions run by strangers that purport to provide education. Children are dropped off and collected later and, because the institutions are not registered or formally classified as schools or other institutions, there may be no DBS or any other checks on them. That is a problem that the Department for Education needs to deal with. We know that there are a lot of such places and that they need attention, but we do not seem to have given ourselves the tools to deal with them.

However, I do not think we should trespass on the privately run institutions, where parents are permitted to drop their children off with friends and acquaintances to receive a bit of education. We all do that at the weekend but we do not for a moment consider that formal checks have to be made. We should recognise the difference between the need to check in the public realm and there being no need to check in the private realm. We should draw a rational and natural division between the two and not let the checks of the public realm bleed into the private. I do not think that that would work. We should trust parents to educate children in the same way as we trust them to bring them up outside school hours and we should be comfortable with the processes around that.

Coming back to the main amendment, I am comforted by what the Minister effectively says in the draft guidance that he has published about how a local authority should establish whether a parent is providing a proper education for their children. I again urge him to accept that this will all work much better if he can find a way of providing a proper level of support. Then, in almost all cases, that assessment can be carried out in the natural way—in the same way as it is carried out by a teacher, observing a child over a period of time and forming a professional judgment.

Children: School Attendance

Lord Warner Excerpts

Wednesday 24th January 2018 Lords Chamber

[Lord Agnew of Oulton]

My Lords, there are no specific statistics on the outcome of home-educated children, but one of the issues that I would like to look at in our discussions on the home education Bill introduced by the noble Lord, Lord Soley, is making examination facilities available more easily for children who are home-educated. At the moment it can be difficult for them to find a setting where they can do their exams, which makes their education more difficult.

[Lord Warner (CB)]

My Lords, has the Minister seen the report by the London Borough of Hackney that there are 1,500 boys in the borough in unregistered schools? Does he accept what the report also says, which is that the local authority’s powers to deal with this problem are inadequate? Is he aware that no operator of an unregistered school has been successfully prosecuted since that legislation was passed in 2008?

[Lord Agnew of Oulton]

My Lords, we are aware of the recent report from Hackney, which refers to between 1,000 and 1,500 Haredi boys attending out-of-school settings in the borough. The report made it clear that they are yeshivas offering religious teaching in settings that do not meet the criteria to register as independent schools, but they are operating as out-of-school settings. We are conscious of this, but we have to be careful because out-of-school settings can include things like Sunday schools and even sports clubs. We have been working with some of these religious groups to encourage them to offer a broader form of education, and recently we managed to persuade the Haredi schools in Manchester to adjust their curriculum to offer a broader education. We will continue to do that.

Vulnerable Children

Lord Warner Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Warner (CB)]

My Lords, I, too, congratulate the noble Baroness, Lady Dean, on securing this debate and her passionate advocacy.

The commissioner has already shown that about a quarter of all children in England have a wide range of vulnerabilities that we should be concerned about. I suspect that progress on tackling this would be facilitated if the Minister’s department could progress faster the adoption of a common identifier for children’s services, based on the NHS number. Can he tell us, or write to me, about where things stand on this long-standing issue?

This initiative will raise big questions about how we use our resources for vulnerable children, and the adequacy of those resources, as other noble Lords have said. We need to take a long, hard look at many of our public policies, which can put children at greater risk. I strongly suspect that we put too much of our effort into trying to cope with deeply embedded problems rather than moving upstream, with more attention being given to earlier interventions and tackling poor and ill-informed parenting.

I turn briefly to three interlinked risk areas that I have been exploring: unregistered schools, home tuition and madrassahs. First, unregistered schools: Ofsted has identified 286 unregistered schools in the past 18 months but only 116 have been inspected, with warning notices issued to 36. The Institute for Jewish Policy Research estimates that 1,400 strictly Orthodox children aged 11 to 15 are being educated in illegal Jewish schools at any one time. Ofsted estimates that about 6,000 children are attending illegal schools in England, but we do not know the true number. The previous and current Ofsted chief inspectors are clearly very concerned about the narrow religious curriculum of the schools—nearly all Muslim or Haredi Jewish—and the unsuitable books and texts being used.

Although it is a criminal offence to operate an unregistered school, recent Answers to my parliamentary Questions show that no operators have ever been prosecuted. This, Ofsted tells me, is because successful prosecutions cannot be brought as there is no satisfactory legal definition of a school. What are the Minister and his department going to do to ensure that prosecutions can be brought at scale to safeguard the thousands of children in illegal, unregistered schools? If he cannot answer today, perhaps we should have a meeting.

My second area of concern is the rapidly growing, unregulated area of home tuition, now provided to nearly 30,000 children. The noble Lord, Lord Soley, is to be commended for endeavouring to tackle the problem in this area with his excellent Private Member’s Bill, which has attracted a high level of external and cross-party support. I see no case for opposing registration in this area as a basis for some light-touch regulation. When an area of unregulated public policy is expanding as rapidly as is home tuition, Governments need to sit up and pay attention to what is going on. It is unlikely to all be good. The Minister was unduly cautious in his response to the speeches at Second Reading.

Finally, I turn briefly to madrassahs, which the former Prime Minister, David Cameron, said unequivocally in November 2015 should be registered. The Department for Education then engaged in a public consultation on the issue. We have not heard much since on what the Government will do. The silence was explained when the most reverent Primate the Archbishop of Canterbury told this House last Friday—rather dubiously proudly, I thought—how he had intervened. As far as I could make out, his opposition to registration was because it would be inconvenient for Sunday schools, despite his acknowledgement that children were being put at risk.

We know that some madrassahs, like unregistered schools and some faith schools, pose a threat to children because of what they teach, the materials they use and their complete absence of support for British values. The current and previous Ofsted chief inspectors have expressed repeated and very clear concerns about the excessive focus on faith-based education, particularly a distorted interpretation of particular faiths and how it poses serious risks to children. Will the Minister and his department listen to the chief inspectors or to the most reverent Primate the Archbishop of Canterbury when it comes to protecting children in this country on this issue? When will we know whether the Government will pursue the policy of the previous Conservative Prime Minister in the area of madrassahs?

Children and Social Work Bill [HL]

Lord Warner Excerpts

Ping Pong (Hansard): House of Lords
Tuesday 4th April 2017 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I too welcome much of what the Minister has said, as well as the work undertaken by the Government and the Members of the other House, particularly their acceptance of the amendment of the noble Baroness, Lady King, on adopted children, as promised. The Minister’s last words highlighting the continued financial support for higher education institutions to train social workers are also very important and very welcome.

I share my noble friend’s concern about proposed new Clause 9 regarding secure accommodation in Scotland. I recognise that there is a crisis in the care of looked-after children. Since the death of baby Peter the number of children taken into care has risen year on year, and we anticipate that the number will increase even more steeply. There is pressure on foster placements and pressure on children’s homes in England and Wales. I recognise that it is sometimes better to send a child a long way from home if there is excellent and specialist provision to meet their needs. However, as a patron of a children’s advocacy charity, I know very well from young people themselves that what they wish for above all is continuity of positive relationships, so sending more children further away from home is always a matter of concern. I know that the Government are apprised of that principle. The thought that we are making it easier through this legislation to place more children out of England and Wales, far from their local authority—in Scotland—therefore causes me concern. The President of the Family Division of the High Court, Lord Justice Munby, said that this was something that needed to be considered, but he also said that there should be a joint Law Commission report into it. My concern is that it needs to be thoroughly considered. I would be grateful to hear from the Minister that, before this amendment is implemented, there will be thorough consultation to consider its implications.

On Amendment 14, on the improvement of standards for social workers, I agree that standards need to be improved. There has been a long-standing concern about the quality of education of social workers. I recognise that they have often not been fully equipped to practise when they have completed their courses. However, it is right to insist that the Secretary of State should consult with the social work profession and higher education institutions in developing these standards. The Minister was fairly reassuring on that point although he did not explicitly mention the higher education institutions. My concern is that there is a risk that ideology and strongly held personal prejudice can lead judgment in the development of social work. The role of the social worker is highly emotionally charged, and it always has been. These people step into the lives of families and children for understandable reasons. The widest possible consultation with academics and practitioners would avoid the risk that the prejudices of one individual or one group could shape the standards too sharply.

I recognise the benefits of the innovative training models such as Frontline, which the Government introduced. The Minister has been fairly reassuring on this last point so I will not go further on that. I do not intend to speak again this afternoon but I warmly welcome the next set of amendments and the introduction of statutory personal, social health and economic education. A long-standing concern is that teachers in schools are just not equipped to teach the difficult subject of sex and relationship education. I hope that by putting this on a statutory basis many more teachers will be properly equipped and children will get the education they need.

[Lord Warner (CB)]

My Lords, I too welcome what the Government have done in responding to some of the concerns that have been expressed about the Bill. They have shown their willingness to listen and to make amendments and I commend them for that.

I just want to raise an issue around secure accommodation. My warning lights always start flashing on the subject of children’s secure accommodation. It is very difficult to regulate this area and to ensure that good care is provided, because the unit costs tend to be extremely high. If we have now got to the point where we have to take children over the border—where they have to cross the Tweed to get their secure accommodation—we should start to be concerned. This sector has shrunk and shrunk and shrunk in England. This was starting when I was chairman of the Youth Justice Board, up to 2003, and it is very difficult to get people to work in it, to set the systems up and to ensure that they continue to be safe.

There is something to be said, not just for the point made by the noble Lord, Lord Ramsbotham, but for taking an independent look at this sector and its economic viability. This is an area where, in effect, you almost have to pay for spare places to be available because you do not know when a child is going to require that accommodation. The Government now need to have a long, hard look at this. The sector has been shrinking for some time; it has proved difficult to get the finances right and to secure good staff. People are doing their best, but things can often go wrong in this sector. It is very difficult to ensure that these places are regulated properly. The Minister might want to write later, rather than responding today, but will he and his department consider whether a review of the sector is long overdue?

[Lord Hunt of Kings Heath (Lab)]

My Lords, the Minister has paid due tribute to Members of this House for their contribution as the Bill was scrutinised some months ago. In return, the Minister’s willingness—and that of his colleague in the other place, Mr Edward Timpson—has been commendable and is much appreciated. There is no doubt that the Bill has changed quite considerably. I particularly welcome the fact that regulation of social workers is now to be undertaken by an independent body, subject to the oversight of the PSA. I also welcome the Government’s decision to accept that the innovation clauses which the Lords took out would not be reinserted in the other place. Essentially, they involved giving local authorities the ability to override primary legislation, so we have maintained an important principle.

The Minister has introduced a number of interesting amendments. I will follow other noble Lords in asking one or two questions. The noble Lord, Lord Ramsbotham, and the noble Earl, Lord Listowel, have raised important points in relation to secure children’s homes in Scotland and the amendments brought forward by the Minister. There can, of course, be no objection whatever to dealing with the technical deficiencies which have been identified, but there is a concern that, across the last six years, there has been a, I think, 22% reduction in secure accommodation places for children. There would be a concern if these provisions were used inappropriately to transfer young people across the border because there were not sufficient resources in England. I hope that the Minister can assure me that this is purely a technical provision, that the Government are actually committed to ensuring that there are sufficient places in England, and that young people are not sent unnecessarily long distances from their homes. As the noble Lord and the noble Earl said, that cannot do very much to improve the quality of their lives, which is the purpose of secure accommodation.

I recognise that the provisions on improvement standards for social workers are a logical outcome of the Government accepting the proposition that social worker regulation should come under an independent regulator. The noble Lord said some welcome words about the Government’s desire to encourage the development of a sector-led improvement body. Clearly, efforts have been made in this regard in the past that have not been deemed to work, but the Government are right to try to inspire another go at getting this right. The noble Lord will probably know that both BASW and UNISON have raised concerns about the Secretary of State setting standards and whether they are linked to the national assessment and accreditation scheme. I shall not go into that in detail, but clearly there is a concern among social workers about the way in which the scheme could be used potentially to penalise individual social workers. I hope that the noble Lord will set my mind at rest on that.

In taking forward these proposals on the establishment of a new regulator and the setting of standards and their assessment by the Secretary of State, I hope that there will be, as the noble Earl, Lord Listowel, said, full engagement with the sector, including with UNISON, BASW and other bodies. There is a particular role for the chief inspector of children’s services here. I look across the Floor of the House at the noble Lord, Lord Laming, who was a most distinguished chief inspector of social services a few years ago. It is a very difficult role comprising being a principal adviser to Ministers and being head of a profession while upholding the public interest. The chief inspector of children’s services has a very strong role to play in trying to pull the stakeholders together rather than necessarily just confronting them. I hope that she and the Minister will take this suggestion as one that is meant in the best possible way. In the end, if this provision is to work effectively, it is very important that we take the profession with us as much as we can on this journey of improvement. The Opposition fully support the Government in seeking to improve standards in the profession. That is why we support the broad thrust of the Bill.

The noble Baroness, Lady Pinnock, talked about training providers. There has been concern, particularly in the light of the debate on the higher education Bill, about who the providers might be. If the Minister could give some assurance about the quality of provision in social work training, that would be very helpful.

I am grateful to the Minister for his work on the Bill, the amendments he has brought forward and for the overall thrust of where we are now going, which we support.

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[Lord Deben (Con)]

My Lords, there is sometimes a moment for all sides to recognise a chance of real conciliation—and I think that this is it. As a practising Catholic who voted and spoke in favour of same-sex marriage, I hope that I may be in a position to refer to this. The fact is that the Government have brought forward something which can be agreed by all sides in a remarkable way. The amendments ought therefore to be treated in the elegant way in which they have all been presented—in other words, as probing amendments for the Government to say something more about their views.

This is a hugely difficult area because it is not only age-appropriate; there is also the question of it being situation-appropriate, as some young people have such a terrible experience of relationships that no age is young enough to teach them what might happen. I have rarely been as moved as I was when I was a Member of Parliament and used to go to my local youth prison and saw boys who could so easily have been one’s own children in a situation where they had done terrible things—but, given their backgrounds, you could not honestly blame them. You could say that they were guilty but you could not blame them for what had happened. I am also enormously impressed by those who overcome that sort of background. They are another group whom we ought always to think about. Schoolteachers have a real problem in trying to deal with all this.

We also have to be careful not to underestimate many of the other important decisions in life. The whole nature of religion and the contribution that religion gives must not be excluded because we are worried about one thing alone. We are very much in danger of moving from an entirely unacceptable position at one end to a position at the other end which excludes a different set of people from proper participation in what the Government seek to do. I therefore very much hope that my noble friend the Minister will take this as an opportunity to say that in our discussions, and in the listening mode which the Government are in, we need to come to an attitude that may last for a long time and stand the test of time. It will of course change because, within that, teachers will learn better how to balance these very real differences because they will be doing it more widely.

I am encouraged both by the statement of the Archbishop of Liverpool, which it was very worthwhile to read out, and the elegant way taken by those with whom one has had strong arguments in the past—the National Secular Society and others. If we can take this moment, capture it and ensure that we get the best out of it, this will be a very special moment for the future of education.

[Lord Warner]

My Lords, briefly, I congratulate the Government on bringing these amendments forward. They are a very welcome advance and I am extremely supportive of Amendments 12 and 13. All credit to the Minister and his colleagues for having the courage to grasp this nettle after so long and come forward with amendments. So it may seem a little churlish if I add a “but”. My “but” relates to Amendment 12B, which was so elegantly spoken to by the noble Baroness, Lady Walmsley. I want to enter into the spirit of the way in which she spoke to it to probe the Government a little on the issue of age and the ability to withdraw children from this education.

We have to recognise that there is a need to make some of this compatible with some of the other aspects on which we judge children: for example, the age of criminal responsibility. It would be extremely strange to give people a chance to withdraw their children from this kind of educational opportunity at an age which is older than the age of criminal responsibility, which is based on the principle of doli incapax—children not understanding the implications of what they have done. There are other bits of our social system that need to be taken into account when we write guidance on these issues for children.

We also have to remember that the state does not give parents an absolute right to do whatever they want with their children. The state does step in. It withdraws children from their natural parents when it thinks that they are being abused or that it is not safe for them to stay in the care of their parents. That is based on another principle, well set out in the Children Act 1989: the best interests of the child. We need to balance the principles of the best interests of the child and the willingness of the state to intervene when it thinks a parent is behaving seriously unreasonably and damaging a child. We have to make the rules in this area consistent with rules operating in other areas, such as the age of criminal responsibility.

So I hope that, while the Minister and his department are framing the guidance, they will be able think about these wider issues, including the ability of parents to withdraw their children from this kind of education. It may be that we have to set some point in time where we cannot accept that parents can withdraw their children from this—whatever set of beliefs they happen to hold. At the end of the day it is their children, not they, who are going to have to cope with the world that they are moving into. We have an obligation to think about children and not just about the rights of their parents.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise briefly to lend my support to this important group of amendments. Like the noble Baroness, Lady Massey, I think this is a historic occasion. Many people, including many distinguished noble Lords, have campaigned for this over many years. Like the right reverend Prelate the Bishop of Peterborough, I am very pleased that we are now talking about relationships and sex education in that order. It is something I spoke about in my maiden speech, and I am very pleased to see it introduced.

I shall make two quick points. The first is that, in the considerable number of debates we have recently had in your Lordships’ House on children’s mental health and during the passage of the Bill, we have heard about the strong link between relationship distress and poor mental health. It seems self-evident that supporting young people to develop relationships skills—conflict resolution, good communications, understanding about respectful relationships, the importance of friendship and family relationships, and expectations about what a healthy relationship looks like and what an abusive relationship looks like and what you need to do about it—is likely to lead to much better mental health and well-being for all young people, which is something I am sure we all want.

My second point is that good-quality relationships and sex education requires good-quality, competent and trained educators. At the moment, very few teachers have been given specific training in this area. On too many occasions the subject is picked up by rather reluctant teachers. Sometimes they are biology teachers, and sometimes they come from other disciplines. If we are to make a reality of this hugely welcome step forward, for which huge credit goes to the Government, it is vital that they look at the training and role of specialist teachers and, where appropriate, the role of specialist voluntary sector providers.

Children and Social Work Bill [HL]

Lord Warner Excerpts

3rd reading (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I, too, added my name to the noble Baroness’s amendment, and I echo what she said about the many organisations which have supported it. Many times during the Bill’s passage, mention has been made of the postcode lottery regarding the performance of local authorities around the country. If this assessment procedure is adopted, who will perform the quality assurance of the delivery of the assessment around the country? It cannot be the expert advisory board, which has a completely different purpose.

[Lord Warner (CB)]

My Lords, I, too, support the amendment, to which I added my name. I congratulate the noble Baroness, Lady Tyler, on her persistence on this, which has been well recognised by those who work in the sector.

As a former director of social services, I think it is essential that we recognise the need to assess many of these children. That is not to say that large numbers of them will necessarily progress to the most demanding parts of the system, but we know that if you do not assess and pick these problems up early, they go in only one direction: they get worse. We end up with children who have already had a pretty tough time having to fight their way into a CAMHS system which is itself struggling to cope with the demands made on it. We need to give children coming into care, those who are looked after, a good shot at getting access to the services that they need.

I think that the amendment has met the Government’s concerns about flexibility, which were legitimate. This House and the Government have always argued for parity of esteem between mental and physical health. This is another piece of the jigsaw to try to ensure that.

[Lord Watson of Invergowrie (Lab)]

My Lords, times without number during the Bill’s various stages, noble Lords from all quarters have highlighted the fact that children in care are four to five times more likely to have a mental health problem than children in the general population. We have advanced convincing arguments at each stage that there is a pressing need for all children entering care to be given the parity of esteem to which the noble Lord, Lord Warner, referred between physical and mental health assessments by appropriately qualified professionals.

We thought that the Minister was going down that track on Report when he tabled an amendment to Clause 1 to make it clear that all local authorities must promote both the physical and the mental health of children in care. That was certainly an important and welcome step, because the current system simply is not working. However, he was not willing to go what we regarded as the logical step beyond that.

It is fair to say that the Minister set out his reasons why he and his colleague, the Minister for Vulnerable Children, Mr Timpson, are not in favour of that. It has been argued that such a move would be too prescriptive in terms of when and how the assessment should be carried out and who might be qualified to do so. It has been argued that the assessment would be seen as potentially stigmatising, and it has also been said that it would cut across the work currently being undertaken by the Department for Education’s expert working group.

I do not think that any of those three holds water. I will not spend any time on the first two but in terms of the expert working group, it should be said that the Alliance for Children in Care and Care Leavers, which has assiduously provided noble Lords with briefings on various aspects of the Bill throughout its progress, is concerned at the Government’s failure to fully support this amendment. That organisation has 24 members, 21 of which are charities actively involved in the sector, but it also includes the Children’s Commissioner for England, the British Association of Social Workers and the National Association of Independent Reviewing Officers.

All those involved in the alliance deal on a day-to-day basis with the mental health and emotional well-being of children in care. The alliance is a body of some substance, and it speaks with some authority. The Department for Education appears to acknowledge that, because the alliance is represented on its expert working group. While that group has the respect of most within the sector—noble Lords were certainly impressed when we met its co-chair, Alison O’Sullivan in September—it will not report until this time next year. As I said on Report, it means that many children will continue to have their mental health issues undiagnosed in the intervening period. Of course, it is not just the end of next year; it is the fact that when the recommendations come out and the Minister decides which to accept and implement, a suitable piece of legislation has to be found. That may not become available until after the next general election—and by that I mean the one scheduled for 2020.

We feel that that is much too far off into the distance. I remain at a loss as to why Ministers are not able to overcome their doubts and simply get on with filling what is palpably a serious gap in the services offered to children entering care. I know that the Minister has been considering representations made to him by the noble Baroness, Lady Tyler. I am not alone in sharing her hope that he will have something positive to say in this area when he answers the debate, so that this matter, which has been discussed for too long, can at least move forward.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support the amendment and the arguments that have been put so far. I will not repeat what I said on Report but I did raise two questions that I did not feel were answered. I asked the Minister to spell out what further evidence, beyond the evidence we have from the experience of Scotland and Wales which we have heard a little about today, the Government need to convince them of the practical value of such a duty. They have been arguing that they do not see what the practical value is. I also asked what evidence they had that it would produce box-ticking rather than cultural change. What the Minister did say was quoted by the noble and learned Lord, Lord Woolf, earlier and I shall repeat it:

“We believe that the way to promote children’s rights is for strong practitioners locally to listen to children and to act in ways which best meet their needs. A duty alone will not do that, and risks practitioners focusing on the wording of the legislation rather than on practice”.—[Official Report, 8/11/16; col. 1089.]

Of course a duty alone will not do that, but surely practice underpinned by a duty is more likely to be good practice than practice that is not underpinned by a duty. Like the noble and learned Lord, Lord Woolf, I am surprised and disappointed that the Government are so resistant to what is, as he put it, such a minimal responsibility that will be placed on them. As we said, it sends out all the wrong messages as to this Government’s commitment to the UN convention.

It is good to hear that the Government have said they are still considering this issue. Given they know that there is so much support in this place it is a shame they have taken their time considering it, but can we have a commitment that when the Bill goes to the House of Commons, a clear statement will be made by the Minister there as to what will be done to reflect the very strong views expressed in this House and which I am pretty sure will be expressed in the other place also?

[Lord Warner]

My Lords, I, too, strongly support the amendment, but as a sceptical old Whitehall warrior, I will open up an issue that may suggest it is not the Minister and his colleagues in his department who might be the villains in this area, but other interests across Whitehall. As I understand it, if the Government accept the amendment they will then have to accept amendments relating to all the other services that are of concern to children. It would be very difficult for them to accept the amendment if they have reservations about the cumulative effect of implementing the convention in this way through statute for all the services that may affect children.

My suspicion about Whitehall, because I am of a suspicious nature given my background, is that there are problems around an impact assessment on what the implications of all this may be. Instinctively I feel that somewhere in this mix are our old friends at the Treasury and the control of public expenditure. They are often to be found when we have these long periods of inaction in any particular area. Some of the areas where children could be seriously affected—clean air, benefits and access to health services to name but a few—go much wider than the scope of the Bill.

I do not expect the Minister to divulge the workings of government, but can he throw any light on whether it is necessary to provide across Whitehall an impact assessment on what the costs of implementing this through statute would be? Do the processes by which these things have to be agreed across Whitehall have any chance of being agreed before the Bill completes its passage through Parliament?

[Lord Ramsbotham]

My Lords, I support everything that has been said and pick up on the words of my noble and learned friend Lord Woolf. It is very sad that the last two reports of the UN committee coming to this country have started with the words that they regret that so little has been done to implement the recommendations they made five years earlier. If, as my noble and learned friend has suggested, the convention or the causes should be made the centrepiece of cross-government action in this area, then there is a solid basis for all affected ministries in Whitehall to rally round and make certain that their contribution to what is required is not criticised the next time the committee visits.

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[Lord Warner]

My Lords, I have recovered from my astonishment at the Minister’s concession on Report. I am delighted to support this amendment, which is far more elegant than the one that I produced.

While am on my feet, I thank the Minister for all his efforts throughout the passage of the Bill and for the constructive way in which he has approached what has sometimes been a robust approach from some quarters of the House to some of his proposals. That has always been done in a thoughtful way, and I am grateful to him, to Edward Timpson and to his officials for the way that they have approached the Bill and the amendments we have proposed.

Before I sit down, in listening to the debates on the importance of personal relationships, it occurred to me that he might draw the importance of personal relationships to the attention of those Ministers who are interacting with their counterparts in Europe because there could be some useful lessons to be learnt from the debates in this particular House.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I do not think I will follow that comment.

If the noble Lord, Lord Warner, was astonished, I was certainly very pleased with the way in which the Minister acknowledged on Report that this is an important issue. I welcome the amendment. I take the opportunity of thanking the Minister, the honourable Edward Timpson in the other place and officials in both the Minister’s department and the Department of Health for the tremendous amount of work they have done in response to the issues raised. We are very satisfied with the outcome.

Children and Social Work Bill [HL]

Lord Warner Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 8th November 2016 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I support the noble Baroness’s amendment and what she has said. After witnessing this weekend, at a gathering of child and adolescent psychotherapists, the superb work that a therapist can do in supporting mothers and their infants to make good, strong relationships, I know that what she asks for is absolutely crucial. It was wonderful to see, for instance, the case of a mother who had grown up with a violent father, been taken into care and then gone on from care to become a teenage mother and have several of her children removed. Then she found the help of a child psychotherapist who helped her to understand her relationship with her child and to build a strong attachment with that child, so that eventually she was able to get back her other children. So I agree absolutely with what the noble Baroness is calling for. It is particularly important in the light of the recent view expressed by the President of the Family Division, highlighting the year-on-year increase in the number of children being taken into care, expressing the concern that that may well accelerate. It is much more difficult to give a high quality of care in the care system if the numbers of children arriving increase year on year.

I was grateful to the Minister for offering to meet me yesterday to discuss whether more can be done by central government to minimise the flow of children coming into care. I look forward to that meeting. I am particularly concerned about the new lower benefit cap and how it might impact on families. The noble Baroness, Lady Armstrong, highlighted the background of poverty for most families whose children are taken into care. I am concerned that this may increase that poverty and force more of these families into homelessness. It raises the risk of more children being taken into care—but we will debate that this evening in the dinner break.

[Lord Warner (CB)]

My Lords, I support the amendment moved by the noble Baroness, Lady Armstrong. I remind the Minister that there have been many initiatives by far-sighted people, including judges such as Nicholas Crichton, who have looked at the issue of repeat pregnancies when a child is taken away from a birth mother.

There is a growing body of evidence, but what have the Government done to look at it in terms of cost-effectiveness? One’s instincts are that this is a good investment. Certainly, sober judges have thought that this was a good investment and have raised the money to put some of these projects in place. Is it not about time the Government looked at the evidence on whether it is cost-effective to go to a scale on this kind of initiative?

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[Lord Watson of Invergowrie]

My Lords, since the Bill had its Second Reading, there has been a wide and varied selection of briefing meetings provided by Ministers and civil servants. In some cases, outside experts were also present, and I commend the Minister for facilitating these sessions, which in many ways have proved helpful in enabling noble Lords to better understand the Bill and to articulate our concerns in greater detail than is possible in this Chamber, or indeed in Committee.

Much progress has been made, and this has resulted in a number of concessions by the Government, particularly in respect of Part 2, on social workers. However, I am confused, having heard the Minister’s opening remarks. He said, and I am pretty sure I am quoting quite accurately, that Clause 29 was not about local authorities opting out or removing services from them. However, Clause 29(2) says:

“The Secretary of State may by regulations … exempt a local authority … from a requirement imposed by children’s social care legislation”.

Surely the Minister’s remarks and the Bill are at odds. Perhaps he can explain that when he replies.

That said, and for all the discussions we have had, we still do not believe, as the noble Lord, Lord Ramsbotham, said very powerfully, that it has been possible for a convincing case to be made by Ministers as to why the exemptions outlined in Clause 29 are necessary. For the avoidance of doubt, it should be made clear that innovation in the delivery of local authority children’s services is to be welcomed. Indeed, throughout this process, I cannot recall anybody—whether noble Lords or people from the various organisations who have assiduously and very helpfully provided us with briefings—argue against innovation per se, or as the Bill describes it, the power to test new ways of working.

The terminology is not that important. What matters is that the children’s services are delivered comprehensively, effectively and safely, and that these services are available across the country. The standard may vary, though that can and must be addressed when it arises. The nature of the services provided should be, as near as possible, uniform across the country. This is about defending children’s social care rights. The alternative is a postcode lottery, as was referred to by the noble Lord, Lord Ramsbotham.

I am sure the Minister would not want that, yet I cannot see how such an outcome is anything other than inevitable if a local authority is allowed to withdraw from providing a service while the neighbouring authority continues to provide it. Exemptions from service provision raise the prospect of looked-after siblings living in different areas having different legal safeguards, and children from different local authorities living in the same children’s home having different forms of legal protection. How can that be regarded as a step forward?

The Government set out their stall in their strategy Putting Children First, which was published in July. It referred to,

“a controlled environment in which we could enable local authorities to test deregulatory approaches that are not currently possible, before taking a decision to make substantial changes to existing legislation that would apply across the board”.

However, the document itself did not identify the “deregulatory approaches” that cannot be tested presently. In the document, the Chief Social Worker for Children and Families asserts:

“We must be enabled to use our professional judgment in flexible and creative ways, rather than having to follow a procedural path or series of legal rules”.

For the chief social worker to seek to avoid having to follow “legal rules” is worrying at the very least and invites the question as to whose side she is on; some have recently questioned whether the answer is vulnerable children. If local authorities are unable to provide a full and effective service in social care, then the main reason is usually a lack of resources, especially in terms of staffing. I think it is pertinent to ask: why is the chief social worker not using her position of influence to campaign for more resources to enable her fellow social workers to do their job to the best of their ability, rather than undermining and demoralising the profession as many social workers feel that she is doing?

The bottom line is that Clause 29 is not necessary. We have been unable to find any evidence that local authorities have their hands tied by existing legislation to the extent that they cannot test “new ways of working”. I am not going to repeat the list of a dozen councils that I gave to the Minister in Committee, and there are more. The message is clear: there are no impediments to such change; at least, it appears from the evidence that none cannot be overcome. Clauses 29 to 33 would undermine a rights-based approach to children’s social care. In doing so they risk removing vital protections from vulnerable young people who rely on the law to keep them safe and guarantee the provision of essential services. I accept that is not what the Minister intends. Of course it is not. However, many people involved in the sector are absolutely clear that that would be the result.

The Government have come forward with a number of what they regard as safeguards. The powers cannot be used to make a profit. I certainly echo the noble Lord, Lord Ramsbotham, in welcoming government Amendment 54. The affirmative resolution procedure will be required to make exemptions from or modifications to legislation. The Secretary of State must consult an expert panel to advise her before she makes any recommendations. However, I contend that these are all open to question. We believe that the Government’s ultimate intention is to open up the field of social work services completely, either to the private sector or to the third sector, with local authorities having their role reduced to a bare minimum. Initially, the most attractive services would be outsourced, but in time the only services not outsourced will be the less attractive and the more problematic ones. At that point, the only means of taking them out of local authority control will be by allowing them to be run for profit and, at that stage if not before, this section of the Bill would be amended, just as so many pieces of children’s protection legislation are amended in this Bill.

As for affirmative resolutions, it is extremely rare for statutory instruments presented to Parliament to be rejected, whether they follow the negative or the affirmative resolution procedure. Indeed, the Hansard Society recently reported that over the past 50 years, a mere 0.01% of such instruments have not been passed. That is one in 10,000. Given the “take it or leave it” proposition inherent in them, that is perhaps not too surprising, but it does take most of the wind out of the Minister’s sails as regards his Amendments 55 and 56.

It is perhaps instructive that the panel is described as an expert panel, rather than an independent panel as we seek in Amendment 60. The reason is clear, though, because in no way could the people mentioned in Amendment 61 be regarded as independent. Two of them are there ex officio, having been appointed to those offices by the Secretary of State. The two “other persons” to join the panel would be chosen by—that is right—the Secretary of State. Given that the Government have made their long-term plan clear in Putting Children First, it would be a brave panel member who argued against a local authority request being approved. The suspicion is that those panel members would become the equivalent of regional schools commissioners, charged with the de facto responsibility of removing services from local authorities as widely as possible.

There are rigorous safeguards that the Minister could consider, such as limiting the powers to local authorities rated good or outstanding; requiring local authorities seeking exemption to hold full and open local consultations, based on a properly considered assessment of the impact of the exemption on the children and families concerned; or perhaps most importantly, requiring that exemptions are not used to reduce overall investment in children’s social care.

Clause 32 also remains a worry, because local authorities in intervention is the most likely situation in which those powers will be used and because the Bill gives responsibility for that to the Secretary of State, without the consultation of local partners that exists for Clause 29. That is why we have submitted Amendment 65, suggesting that the Secretary of State must consider the advice of the Children’s Improvement Board.

The Minister must be aware of the opposition to Clause 29. A petition calling for the exemption powers to be scrapped has received over 100,000 signatures. More than 40 expert organisations have come together to oppose the inclusion of these clauses in the Bill. Last week UNISON published a report which showed that, in a survey of almost 3,000 of its social workers, just one in 10 supported the Government’s proposals.

This clause, and the ones which relate to it, have long been the main concern of noble Lords and a wide range of opinion beyond. I accept that the Minister has tried to mitigate its effects and the fears that it has engendered, but I am afraid he has not succeeded. For that reason, should the noble Lord, Lord Ramsbotham, decide to press Amendment 57, he will have the support of these Benches.

[Lord Warner]

My Lords, as someone who strongly supports reform and innovation across the public services, I rise, perhaps a little surprisingly, to support Amendments 57, 58, 64, 66 and 68, tabled by the noble Lord, Lord Ramsbotham, and to which I have added my name. I will not rehearse again the arguments that he and the noble Lord, Lord Watson, have made, and with which I totally agree. I welcome, and accept, that the Government have crafted some safeguards to meet the extensive concerns expressed across the Benches of this House in Committee and by many concerned interests outside Parliament, most notably the social work profession itself and the major children’s charities.

The Government’s amendments include one of my proposals, for which I am grateful—namely the establishment of an independent panel to consider particular proposals. Ultimately, however, after reflecting further on this issue following a pretty lengthy meeting with Edward Timpson, many of his officials and people from local government, I think that these clauses remain fundamentally flawed, even with the proposed safeguards, for three main reasons.

First, the examples that the Government have cited in support of the clauses do not justify the kind of draconian powers that the Secretary of State has sought. All the examples I have heard about are relatively minor changes which may or may not improve effectiveness and efficiency. The Government have simply not shown why such wide powers are needed, or the scale of innovation that cannot be attempted because of primary legislation. We simply do not have the evidence base to show that there are a lot of hungry people out there wanting to innovate who are frustrated by primary legislation. In any case, if the Government thought that the changes they have cited were necessary and needed primary legislation, they could, and should, have used this Bill to make them, and subjected their ideas to parliamentary scrutiny. There was nothing to stop them including those proposals in the Bill and explaining why they needed to introduce changes and why children’s services would be improved. However, the Government have chosen not to do so. Instead, they have chosen an extremely large sledgehammer to crack quite small nuts, which has only caused many people to wonder what the Government are really up to. The Government’s failure to consult properly on this Bill in advance has only fuelled that suspicion.

Secondly, the Government have singularly failed to convince all the major children’s charities, Liberty and the majority of social workers that what they are proposing in Clauses 29 to 33, even with the proposed safeguards, will benefit outcomes for vulnerable children. The charities, along with the professional interests, simply do not consider that the Government have made the case for Parliament to open the door to remove long-standing protective rights granted by Parliament to safeguard highly vulnerable children. They are right to warn us to draw back from granting these wide powers to the Government, even with the proposed safeguards, without much more convincing evidence. As the charities said in the briefing to us, the Government should go back to the drawing board on innovation and conduct a proper review of what is needed in consultation with the various interests. It is striking that all the briefing we have received shows that these bodies have an appetite for innovation. They are not being Luddites about innovation and reform. They are saying that the process which the Government have adopted is totally inappropriate if we want to safeguard rights-based children’s protection services.

Finally, the noble Lord, Lord Ramsbotham, referred to an argument which is currently being given a good airing over the triggering of Article 50. The argument is that when Parliament puts legislation in place, Parliament should amend it and not allow a Secretary of State to take wide powers to amend what he thinks fit. That is a particularly important consideration when the rights of vulnerable children are involved. For those reasons, if the noble Lord, Lord Ramsbotham, chooses to test the opinion of the House, I will vote with him.

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[Lord Nash]

My Lords, I thank all noble Lords who have contributed to this debate. I found it very depressing. Frankly, many noble Lords seemed to be depressingly suspicious of our motives. This is all about improving care for children at the front line. Nobody who has worked closely with my ministerial colleague Mr Timpson could possibly doubt that. He literally has care for children in his DNA, his late mother having fostered more than 80 children and adopted several, and his having worked as a professional in this field for many years. I am extremely grateful to my noble friends Lady Eatwell and Lord True, who are hugely knowledgeable on the inner workings of local authorities in this area, and to my noble friends Lord Farmer and Lord O’Shaughnessy and my noble and learned friend Lord Mackay, for their support.

The noble Lords, Lord Watson and Lord Low, asked for examples of why this power is necessary. The noble Baroness, Lady Howarth, mentioned three examples. We have discussed this at length before. Local authorities, including the very best, tell us that this power will provide them with opportunities to innovate which are simply not available under current legislation. Of course, some local authorities provide very good services under the current legislative framework, but children deserve the very best services, not the best within the current constraints of the good but not perfect legislative framework.

During the course of this debate, I have reflected on a number of points that have been made. The noble Baroness, Lady Howarth, talked about a lot of misinformation in the system and a lot of suspicion, which may affect some noble Lords’ suspicion. It is our job as lawmakers to see through suspicion and see the arguments for what they truly are, and it is the Government’s job to clarify the position with stakeholders. I commit to doing everything we can to explain more fully what this is about, because it is clear that we need to do more in that regard.

I have also reflected on something that my noble friend Lady Eaton and the noble Lord, Lord Low, said. I have huge respect for the noble Lord and I was struck by how suspicious he was of our motives in this regard. I have thought about this in relation to Clause 32. Without Clause 32, it would be impossible to say that this is about dismantling local authorities because these provisions can be initiated only by local authorities. Clause 32 was intended to be a technical clause to clarify that whoever is discharging the local authority’s functions, whether it is a trust or the Secretary of State, has the ability to use the power to test different ways of working. As I have said previously, we anticipate working with our strongest local authorities in the first instance, rather than intervention authorities, and there was never any immediate policy intent for the power to be used in this way; nor was the intention to cut local partners out of decision-making. However, I understand that this point may have caused unnecessary concern to noble Lords. It is critical that local government should feel it owns these clauses. If the provisions in Clause 32 are a block to that, I am very happy to reconsider the point completely. I think that would remove the fear expressed by the noble Lord, Lord Low: there could be no question of a dark agenda on the part of the Government to dismantle local authorities, because only they would have the power to initiate these clauses. I hope this will go some considerable way towards reassuring noble Lords who have concerns on this point.

I will address some other points, particularly the amendments on the process of scrutinising applications. I start with the amendment in the names of the noble Lords, Lord Warner and Lord Watson. As I have said, we have listened to noble Lords on this point and tabled a government amendment to introduce an expert advisory panel to scrutinise applications to use the power, and publish its advice. I believe we have gone a long way towards satisfying noble Lords’ concerns in this area.

Amendments 62 and 65, tabled by the noble Lords, Lord Watson and Lord Hunt, are on the Children’s Improvement Board. I entirely understand the intent behind these amendments, and the noble Lords are right that local government has a very important part to play in scrutinising applications. We propose that this be done through the Children’s Improvement Board feeding in views to a local government representative on the expert advisory panel, which I have already referred to. My officials will work with the LGA and others to work out the details of this process, but I think that would be preferable to naming an informal grouping in the Bill. The grouping could change its constitution or its name at any stage and therefore render itself unable to be consulted. I do not think that would be the right way forward.

Turning to the amendments that address the principle of these clauses, the noble Lord, Lord Ramsbotham, referred to organisations which object to the power. However, it is overwhelmingly the organisations on the front line, and those that represent them, which support these clauses and agree with the Government that overregulation can get in the way of innovation. The LGA has said that it strongly supports the principle of allowing councils to shape provision around the needs of children and young people, rather than the constraints of inflexible regulation. Similarly, the Society of Local Authority Chief Executives has said that the tight regulation and inspection regimes applied to children’s social care provide little opportunity for innovation, and that the proposed power to innovate will enable local councils to try different approaches with appropriate safeguards.

Our partners in practice, 11 of the best and most innovative local authorities from across the country, support this. For instance, Leeds City Council has said that it wants to work in partnership with government to remove barriers that get in the way of best practice, and become an exemplar of a new and more sustainable safeguarding system in which children do better because families are supported to do more and the state has to intervene less. Professor Eileen Munro, whose ground-breaking review into child protection is at heart of our case for the power, supports these clauses. She has said of the power that it is,

“a critical part of the journey”,

set out in her independent review and that,

“testing innovation in a controlled way to establish the consequences of the change, before any national roll out, is a sensible and proportionate way forward”.

Anthony Douglas, chief executive of Cafcass, has described the power to innovate as a,

“crucial requirement if the mainstream social work and social care services of the future are to successfully manage demand, improve quality and provide value for money”’.

The National IRO Managers Partnership sees the opportunity given by the clauses to test new approaches, and has said that the clauses are,

“an opportunity to review practice and develop more innovative approaches and models of support across the whole system of children’s services”.

Finally, Chris Wright, chief executive of Catch22, a charity that is at the forefront of delivering innovative services, makes the case for the power well. He says:

“It will give power back to practitioners and professionals at the local level, supporting them to design programmes that work for the specific children in their care”.

This illustrates that a very significant amount of support exists for the Government’s case that regulation can get in the way of innovation, and that the approach we are taking of introducing a grass-roots power that allows local authorities to come forward with ideas, with careful safeguards, is the right one.

I understand the concerns expressed by noble Lords about delegated powers of this type and about whether the power is proportionate. I stress that this is absolutely not about Government bypassing Parliament on matters of legislation. It is about local authorities, Parliament and Ministers working in partnership to test new approaches and build the evidence for a better legislative framework for all children. Every use of the power will be rigorously scrutinised ahead of being debated, to ensure that it is truly in the best interests of children. Parliament will have the ultimate say on every use of the power.

The noble Lord, Lord Warner, made the point about using a sledgehammer to crack a nut. I suggest that in voting out this clause, noble Lords would be using a sledgehammer to deny the system the opportunity to test a very limited way of working with the aim of improving the lives of young people. The noble Lord asked for evidence, but it is not until we test ideas in practice—in a very limited way—that we can get that evidence, rather than just talking about a lot of theoretical ideas.

[Lord Warner]

I was making a slightly different point. Where is this groundswell of concern which accumulated in the DfE before it produced the legislation to suggest that this is necessary?

[Lord Nash]

I have already quoted a number of practitioners who have stated the need for it. As I have said, if we remove Clause 32—which I am quite prepared to look at doing—we will deal with many of the shadows that some noble Lords have raised.

The Government have listened and made substantial steps to put safeguards in place around the use of the power. The Children’s Minister and I remain ready at any time to discuss these clauses further. Professor Eileen Munro talked about doing the right thing, rather than doing things right, and that is what this power is all about. If these clauses are removed, noble Lords would be denying local authorities that can see a better way of working for the benefit of the children in their care the opportunity to test the whole system and learn how we can do things better, giving those children the opportunity of a better life.

--- Later in debate ---

[Lord Warner]

My Lords, I echo the support given by other parts of the House to the Minister. I am grateful for the fact that Edward Timpson was very much in listening mode. He was extremely helpful in taking forward and dealing with the concerns many of us had with the original version of Part 2.

I echo the point made by the noble Lord, Lord Hunt, regarding the PSA’s concerns about how widely the powers have been drawn. It has been given powers to go to the High Court, which is not the arrangement it has with all the other health and care regulators. It is pretty nervous about the cost implications. Also, on the point the noble Lord made about the transition arrangements, a very large number of cases need to be dealt with, and there needs to be an orderly transfer.

My name has been added to Amendment 116, the intention of which is to get the Minister to explain why the affirmative resolution procedure applies to most of this part of the Bill, but the negative procedure applies to changing the name of the regulator. Is there some cunning plot in the DfE regarding another lot of names they have in mind?

[Lord Nash]

My Lords, I am grateful to the noble Lords, Lord Hunt and Lord Warner, for their comments. I will write to the noble Lord, Lord Hunt, about the transition arrangements. His advice is helpful. I can reassure noble Lords that we have no intention of expanding the PSA’s role in relation to its power to appeal cases to the High Court, but I will cover that in a letter to the noble Lord.

On funding Social Work England, we will ensure that any set-up costs will not fall on social workers themselves, and we are committed to supporting its running costs. Social workers already pay one of the lowest fees of any profession and we are determined to keep these as low as possible. It is of course normal practice for professional regulation fees to be subject to review from time to time. However, the amendments will ensure that Social Work England will also have to seek the approval of the Secretary of State before determining the level of fees. This will allow Ministers to exercise appropriate control over any future plans by the regulator to increase fees. I hope that reassures the noble Lord.

On the issue raised by the noble Lord, Lord Warner, we have reflected the principle he wanted in Amendment 115, which inserts a new clause to make specific provision for parliamentary procedures relating to regulations made under Part 2. This sets out that all regulations in the main body of Part 2 will be subject to the affirmative procedure. There is an exception for renaming the regulator. Frankly, that is because we believe a name change represents a relatively minor change and the negative procedure allows for sufficient scrutiny. A name change would, of course, not involve any change to the fundamental objectives and functions of the regulator or any of the other provisions governing the regulator’s operations. I hope the noble Lord is reassured to hear that, and that noble Lords are happy with the amendments.

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Moved by

[Lord Warner]

117: After Clause 50, insert the following new Clause—
“Time limit and review
(1) This Chapter (sections (Social Work England) to 52), Schedule (Social Work England) and any regulations made under these provisions, shall cease to have effect at the end of the period of five years starting with the day on which they come into force, unless the conditions in subsections (2) and (3) have been met.(2) The conditions in this subsection are that—(a) there has been an independent review of the effectiveness of these provisions, which has included consultation with representatives of the social work profession and other interested parties; (b) a report of the review has been laid before Parliament, together with a response to the review by the Secretary of State.(3) The condition in this subsection is that the Secretary of State has, by regulations, made such changes to the provisions listed in subsection (1) as he or she considers necessary, having full regard to the findings of the review.(4) Regulations under subsection (3) must be made by statutory instrument, and may not be made unless a draft of the statutory instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Warner]

My Lords, I will try not to detain the House for much longer on this Bill, but Amendment 117 in my name and those of the noble Lords, Lord Hunt and Lord Ramsbotham, and the noble Baroness, Lady Walmsley, does no damage whatever to the Government’s wish to progress the establishment of a new social work regulator in the way now proposed with the new government amendments. Instead, it gives the Government the chance to review progress after a decent interval and in the light of experience and, as I will come to briefly in a moment, likely changes in the regulation of other health and care regulators.

In essence, the amendment would impose a pause after five years of all the changes in the amended Part 2 of the Bill and the associated schedule and regulations made under these provisions, unless the Government have met three relatively modest conditions. The first would be an independent review of the effectiveness of the changes that includes consultation with the social work profession and relevant interests. The second would be to lay the review’s report before Parliament, together with the Secretary of State’s response. The third would allow the Secretary of State to make such changes to Part 2 as she thinks appropriate, having full regard to the findings of the review.

As I have said already, I welcome the way the Government have responded to the many concerns about Part 2. I regret that the Government were unwilling to go a little further and keep the governance of the new regulator under the Privy Council Office, as is the case with the current social work regulator and all the health and care regulators. However, that disappointment is not the main reason for the amendment, which the clerks helpfully framed.

Behind the amendment are two main concerns. First, the history of social work regulation has not been a happy one, as everyone knows only too well. The introduction of a new regulator has itself not had a very orderly birth. A review after a few years would seem a sensible precaution, given the history of this area. Secondly and perhaps more importantly is my concern, shared by the Professional Standards Authority, that a high proportion of social workers to be the concern of the new regulator do not work in children’s social care, whose problems have driven the reform in the Bill. These other social workers work in adult social care and mental health, where their main working relationships are usually with adults and the NHS and nothing whatever to do with the DfE.

There is a totally different change agenda going on for these adult social work staff that is bound up with the integration of the NHS and adult social care under the Department of Health’s oversight, plus integrating better mental and physical healthcare. These are the agendas that one half of the social care workforce are engaged with. Until the Bill came along, the regulation of all social workers had been under the same governance and oversight as all the other health and care professions. All these professions were on the cusp—and still are—of further regulatory reform following a Law Commission report. That programme of reform is still on track for public consultation and new legislation, quite possibly in this Parliament. It is quite possible that these changes would have implications for the new social work regulator, Social Work England. In its evidence and briefing for this debate, the PSA has expressed its concerns about whether there will be proper alignment between further regulatory reform of all these other health and care professions, and the work done by the new Social Work England regulator.

In these circumstances, it would seem wise to prepare for a pause and review within about five years to see how things are going with the new social work regulator and with this wider regulatory reform agenda for the health and care professions, with whom social workers’ future is, in many regards, deeply embedded.

That is what my amendment would do. It would not stop the Education Secretary pressing on with the changes in the Bill, but it would ensure that, across Whitehall, social workers were not lost sight of in the wider health and care professions regulatory reform agenda.

I hope that the Minister will see this as a constructive amendment and that he and his colleagues will consider it sympathetically and perhaps discuss it further with me and others who are interested in this area—and possibly the PSA as well—before Third Reading. I beg to move.

[Lord Hunt of Kings Heath]

I support the amendment in the name of the noble Lord, Lord Warner, and hope that the noble Lord, Lord Nash, will be prepared to meet him in the next week to discuss it. We wish the new social work regulator all the best in its difficult task. I hope that it will be able to learn the lessons of the failures of the past and give the profession the kind of stability and leadership in regulation that it requires.

We also know that the Department of Health is gearing up to a review of and potential legislation on health regulation, which is bound to have an impact on adult social workers—the noble Lord, Lord Warner, set that out very clearly. We want the integration of professional workers to be encouraged as far as possible across health and social care and for there to be consistency in regulation more generally. Given that this major work is to be undertaken over the next few months and years, the amendment provides a backstop which essentially says that there should be a time limit on the arrangements being taken forward, unless the condition, which is an independent review to be considered by the Secretary of State, gave assurance that the Government collectively were making sure that the integration and consistency that we want would be implemented in full.

The noble Lord, Lord Nash, and his ministerial colleagues have been exceptionally kind in listening to noble Lords on this Bill. I hope that he might be prepared to do the same on this amendment.

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[Lord Nash]

My Lords, I am grateful for noble Lords tabling Amendment 117 and welcome the intention behind it. We are committed to ensuring that these provisions and the work of Social Work England are independently reviewed. It is crucial that we ensure that the provisions bring about the reforms that are needed and that they remain fit for purpose.

I am sure that noble Lords agree that we must avoid any potential for the social work profession not to be regulated, but we should not risk the regulatory oversight of the profession being in any way uncertain. I can reassure noble Lords that this Government are making substantial investment in social work reform and will not leave the success of the body to chance. I can commit to go further than promising to reflect on the matter and meet the noble Lords who have raised this issue.

To ensure that Social Work England remains fit for purpose and carries out its functions effectively—and at the risk of being accused of trying to end this stage of consideration of the Bill on a high—I want to signal now my intention to table an amendment at Third Reading that commits on the face of the Bill to the carrying out of a formal independent review of the regulator five years from the point that Social Work England becomes fully operational. We will require the review to be laid before Parliament.

I anticipate that the review will consider the operation of the regulator with particular regard to its governance and oversight arrangements. I will also require those undertaking the review to consult representatives of the social work profession and other interested parties. I also reassure noble Lords that, following the review and discussions with Members of Parliament and Peers, the Secretary of State for Education and the Secretary of State for Health will be required to publish a response setting out the actions that will be taken.

I wholly agree with noble Lords that appropriate measures need to be in place to ensure that these provisions are independently reviewed. As I set out earlier, the Professional Standards Authority will undertake an independent review annually on how Social Work England discharges its functions. The amendment that I will propose will strengthen these measures further.

I hope that the commitments that I have set out tonight—that an annual report will be published by the Professional Standards Authority, and the tabling of an amendment that would see a full independent review after the first five years of Social Work England’s operation published and accompanied by a statement from both Secretaries of State setting out clearly their response—will reassure noble Lords of the Government’s commitment to getting this right not just now, but in the future. I am happy to meet noble Lords to discuss the details further, but in view of these commitments I hope that the noble Lord will agree to withdraw the amendment.

[Lord Warner]

I am astonished. The Minister seems to have got over his earlier depression and I am very grateful to him for his response. On that basis, I beg leave to withdraw the amendment.

Amendment 117 withdrawn.

Children and Social Work Bill [HL]

Lord Warner Excerpts

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

[Lord Watson of Invergowrie (Lab)]

My Lords, I support the amendments in this group, particularly Amendment 4. I am pleased to support the remarks of the noble Lord, Lord Ramsbotham, who stressed the need for screening for the various neurodevelopmental disorders and neurodisability needs listed in the amendment. Many of those arguments were made in Committee with particular reference to communication disorders, and I hope the Minister will find them more persuasive on this occasion.

There are many problems related to getting children an assessment and/or a diagnosis. The social worker needs to be aware of neurodisabilities and the support and training to enable them to develop this understanding. The lack of time to build meaningful relationships with a child and really get to know them is also of concern. Again, I hope the Minister will have something to positive to say on that.

On Amendment 1, the Minister acknowledged the need for parity of esteem between physical and mental health, and of course that is welcome. That being the case, however, there is surely no reason why he should not accept that his amendment is logically extended by the wording of Amendment 8 in the name of the noble Baroness, Lady Tyler. Looked-after children are among the most vulnerable in our society, often entering care with a history of abuse and neglect. But it is the sad case that once they are in the care system—a system intended to protect them—many continue to be at risk of further abuse. The Children’s Commissioner estimated that between 20% and 35% of children who had been sexually exploited were in care at the time of that exploitation. I am afraid that, all too obviously, there have been several such cases in our newspapers recently.

Knowing and understanding what types of support would benefit children entering care should be a simple step. It should be a basic element of that support that they receive a mental health assessment alongside the physical health assessment that already happens. Not only would that identify children with diagnosable conditions that require clinical interventions, it would allow foster carers, social workers, teachers and other responsible professionals to develop an understanding of how they could foster therapeutic relationships with those children in their care. I echo the recent remarks by the noble Earl, Lord Listowel: in many cases children require mental health assessments prior to entering the formal education system because damage can often be done at that stage that it is very difficult to deal with later. Children cared for in institutional settings have often experienced a high number of foster placements which have subsequently broken down, which can often be a by-product of poor emotional well-being.

It is estimated that almost three-quarters of children in residential care have a clinically diagnosable mental health condition. If a concerted effort had been made to address the mental health needs of those children when they entered care, it is at least possible that they may never have needed to be placed in residential care, which is, after all, a much more expensive option than foster care. That is why a whole raft of professionals working with the mental health needs of looked-after children believe that this help should be offered as early as possible. There is no rational reason for delaying the introduction of these simple measures, which could prevent further trauma being inflicted on these children.

As many noble Lords present will know, we have raised this issue time and again. I was among several noble Lords making the case at each stage in the passage of the Children and Families Act 2014. It was repeated at Second Reading and in Committee on this Bill. I raised it again at the briefing session on the Bill for noble Lords which the Public Health Minister hosted in September. All this was to no avail. Nor has this House been the only source of such pleading. As the noble Baroness, Lady Tyler, said, in April, the Commons Education Select Committee published its report entitled Mental Health and Well-being of Looked-after Children. One of its recommendations was that,

“all looked-after children should have a full mental health assessment by a qualified mental health professional. Where required this should be followed by regular assessment of mental health and well-being as part of existing looked-after children reviews”.

The Government considered the Committee’s report, rejected most of it, it must be said, and their response on that point was:

“We do not accept the recommendation as it stands”.

The response went on to refer to the expert working group for looked-after children that the Government established in May as a possible means of filling this long-established gap in provision for looked-after children. Perhaps there is reason to be optimistic as to that group’s recommendations, since it will have as its co-chairs Alison O’Sullivan, the former president of the Association of Directors of Children’s Services, and Professor Peter Fonagy, a psychologist and medical researcher. By what I am sure is complete coincidence, both gave evidence to the Education Select Committee’s inquiry and both, I understand, indicated their support for children having a full mental health assessment when they enter care. The expert working group also included four people who gave evidence to the Select Committee, plus the person who acted as its adviser, so the crossover is considerable, which I very much hope is all to the good.

It would lack consistency for the Minister today to submit Amendment 1 but then dig in his heels and steadfastly refuse to go further with regard to a full mental health assessment. Simply pointing to the expert group is not satisfactory, because it is not due to report for at least 18 months, which means that the Government will effectively stonewall again when the Bill reaches another place. Even if the expert group recommends a mental health assessment for each child entering care, the Government would then need to accept the recommendation—which, on past practice, requires a leap of faith—and then we would need to await the next suitable Bill as a vehicle to introduce it. So if anything does change, it will be quite some way down the line.

The Minister, his advisers and officials at the DfE should ask themselves how many more children will have their mental health issues undiagnosed because of government foot-dragging on an issue that the professionals are quite clear on. Over the years ahead it will be many thousands and that is not a thought of which anyone associated with the Bill on the government side should be proud.

[Lord Warner (CB)]

My Lords, I support all the amendments in this group, particularly Amendment 8, spoken to so ably by the noble Baroness, Lady Tyler. I shall turn to Amendments 4 and 5, to which I have added my name, in a moment. It is a strange irony that she could find an assessment tool in the youth justice system for these conditions; looked-after children seem to have to work their way into the criminal justice system before they can avail themselves of this tool. If I may say so to the Minister, it might be worth considering getting in there a little earlier with looked-after children and accepting the noble Baroness’s amendment.

I strongly support Amendments 4 and 5 in the name of the noble Lord, Lord Ramsbotham. I declare my interest as the grandparent of a child on the autistic spectrum and a staunch supporter of the National Autistic Society. From all my involvement with looked-after children over the years, many of whom then appeared in the youth justice system, where I saw them again, far too many of these children end up in that system and far too many of them have neurodisabilities or neurodevelopmental disorders. Their problem has often been overlooked for a very long time. These disabilities can be at the heart of their problems in terms of social non-compliance in the school and in the wider community. This leads to their becoming children at risk and in need, as well as often ending up in the youth justice system. The way that they process information and instructions—or, more accurately, fail to do so—is at the heart of many of their problems. Knowing about this is a first step to helping them to manage their condition.

If the state is to take the drastic step of assuming responsibility for these children, the least it can do is to make very sure whether these children have disorders and disabilities about which, on their own, they can do very little and with whose management they need help. The Government should take this issue seriously and include in the Bill a provision of the kind set out in Amendments 4 and 5.

--- Later in debate ---

Let there be no doubt of our commitment to improving outcomes for looked-after children and care leavers, but I encourage noble Lords to be wary of adding to the already complex landscape of legislation in this field at this time, ahead of the expert group—

[Lord Warner]

I am sorry to interrupt the Minister’s flow, but I am puzzling over what he has just said about the amendments from the noble Lord, Lord Ramsbotham, and whether the thrust of those is going to be included in statutory guidance, particularly covering all the conditions set out in Amendment 5. He seemed to be quite encouraging about this, but perhaps he could clarify whether that will be covered in statutory guidance.

[Lord Nash]

We will certainly draw attention in the statutory guidance to all these conditions and their importance. We are reluctant to encourage people to assess everyone for all these conditions, if the noble Lord sees what I mean.

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In any event, I think that this response recognises that the practice is to have a particular carer allocated to the child. If that happens and is consistently carried out, the link is likely to arise that may be of extreme value in the emotional well-being and stability of the child, as it is very difficult if these people change completely every so often without any continuity. That is what I want to achieve and I am glad the noble Lord, Lord Warner, has found it possible to put his name to this amendment.

[Lord Warner]

My Lords, I shall speak to Amendments 2 and 9, both of which I have added my name to. Based on my own experience, I believe that the amendment of the noble Earl, Lord Listowel, is extremely important. Too often, in the understandable wish to make children safe, we overlook the importance of previous and sometimes current links to children’s family and a wider group of people who are important adults in their life. That is even where parts of that family have been highly dysfunctional and may not have always treated them well. There is often still a link with that family which is very important to the child.

These children often wish that their immediate family had treated them better, but they do not necessarily wish to sever all their links to family and the wider world outside of what they experience in care. Very often, there are people in their family and among a wider carer group with whom they have made quite a strong bond and relationship and have a desire to maintain that contact. I suggest to your Lordships that it is critical to a child’s own sense of self-worth that they are not given the impression that they do not matter to this wider family and group of people who have been important in their life. I think it is critical that the Government take seriously the spirit of the amendment proposed by the noble Earl, Lord Listowel, and are willing to incorporate that spirit in some form in appropriate words on the face of the Bill.

I have added my name to Amendment 9, proposed by the noble and learned Lord, Lord Mackay, because I strongly support it. I think he has worked extremely hard trying to persuade the department that there is merit in his approach. I think there is very strong merit. Children in residential care are often the most needy and vulnerable. All too often they have a history of failed placements and a strong sense of being let down by the adult world. They are often used to adults walking away from them or dipping in and out of their lives, rather than building strong relationships with them that last over time.

When they come into residential care and find a key worker or a personal adviser to whom they can relate, it is often very important for their sense of self-worth that the system tries to foster that relationship and assists its continuance, not only while they are in care but when the child leaves residential care and moves to independent living, which is a very difficult thing to carry out. Many of us find it difficult to encourage our own children to move to independent living well into their 20s, so imagine what it is like for a young person leaving care. Maintaining that relationship with a key worker, personal adviser or adult who is connected to the child when they are in care may, in some cases, be the ingredient that determines success or failure as they move into independent living.

This is a massive issue for many of these young people, and I think that the Government would do well to listen to both the noble and learned Lord, Lord Mackay, and the noble Earl, Lord Listowel, and to take seriously their amendments.

[Baroness Lister of Burtersett (Lab)]

My Lords, I want to make one simple point in support of Amendment 2, although it probably relates to Amendment 9 as well. In discussing the previous group of amendments, we talked about the mental and emotional health of children, and the Government’s amendment was about the promotion of mental as well as physical health. I cannot think of anything that could do more to undermine the mental health of children than to be torn away from relationships that are really important to them. Therefore, in the interests of making a reality of government Amendment 1, I hope that the Minister will feel able to accept Amendment 2 in the name of the noble Earl, Lord Listowel.

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Moved by

[Lord Warner]

6: Clause 1, page 2, line 27, leave out “A local authority in England must” and insert “In discharging its duties under subsection (1), a local authority must—
(a) ensure that all the local authority’s relevant partners are aware of their duty under sections 10 (co-operation to improve well-being) and 11 (arrangements to safeguard and promote welfare) of the Children Act 2004 to co-operate with local authorities to improve the well-being and safeguard and promote the welfare of children who fall under subsection (2); and(b) ”

[Lord Warner]

My Lords, in moving this amendment I shall also speak supportively of Amendment 7, to which I added my name after I had tabled Amendment 6. Both amendments seek to achieve similar ends but in slightly different ways. That end is to include in Clause 1 of the Bill on corporate parenting principles the importance of strong co-operation between the responsible local authority and all the other partner agencies that are critical to successful corporate parenting of looked-after children.

On Amendment 6, as I have said in previous discussions with Ministers, we cannot state too often that the Bill should remind partner agencies of their duty to co-operate with the responsible local authority in delivering the best outcomes for looked-after children. The fact that such a duty was set out in the Children Act 2004 does not, in my view, mean that we should not refresh that duty in this new, reforming Bill. It helps, if I may suggest it, to give local authorities leverage with partner agencies when those agencies face difficult priority decisions on how to use scarce resources. That situation, if I may say so, is a lot worse than when that previous piece of legislation was passed. Local authorities need all the help they can get to leverage support for the children they are responsible for from these partner agencies at a time of very difficult public expenditure situations.

These same arguments, I suggest, apply to Amendment 7, which the noble Lord, Lord Watson, will be elaborating on. I would be willing to forgo Amendment 6 if the Minister finds Amendment 7 more to his liking. I beg to move.

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[Lord Nash]

My Lords, I am grateful to the noble Lords, Lord Watson and Lord Warner, for the opportunity to discuss the most effective way of ensuring that partner agencies support local authorities in fulfilling their role as corporate parents, and grateful to them and the noble Baroness, Lady Pinnock, for their contributions to today’s debate.

Legal responsibility and accountability for looked-after children and care leavers rests with local authorities. We believe that maintaining this clear accountability is right to protect vulnerable young people. As such, it is important that the law is clear that local authorities are the corporate parents for looked-after children and care leavers. Section 10 of the Children Act 2004 already places a robust and clear statutory duty on local authorities to,

“make arrangements to promote co-operation”,

to improve the well-being of local children and care leavers in relation to,

“physical and mental health and emotional well-being … protection from harm and neglect … education, training and recreation”,

the contribution made by children to society, and “social and economic well-being”. The partners listed in Section 10 include the agencies necessary to support vulnerable children properly. This includes those listed in this amendment, such as health bodies and the police, but also organisations such as schools and further education institutions that local authorities consider appropriate.

I absolutely agree that partner agencies must be aware of their duties to co-operate with authorities to improve and have regard to children’s welfare under Sections 10 and 11 of the Children Act 2004. However, in practice, to fulfil these duties effectively local authorities would have to make relevant partner agencies aware of their obligations under Sections 10 and 11, so these amendments simply duplicate what is already legally required or necessary in practice to meet existing requirements regarding looked-after children and care leavers. I should add that, crucially, Section 10 goes wider than the amendment of the noble Lord, Lord Watson, as it also places a reciprocal and direct duty on partner agencies to co-operate with local authorities in this regard. Moreover, Section 11 of the Children Act 2004 places a direct duty on the bodies it lists to make arrangements to ensure that they have regard to the need to safeguard and promote the welfare of children when discharging their functions. Therefore, all the bodies within the scope of this provision will be required as of necessity to know about it.

When defining well-being, Section 10 actively addresses key areas where noble Lords rightly want assurance that all vulnerable children will receive high-quality support, such as mental health and emotional, social and economic well-being. This clear and holistic definition provides local authorities with a robust mandate for interagency co-operation to improve the wider well-being of children. Section 10 gives local authorities a strong lever to get the local co-operation needed properly to support vulnerable children and young adults in key aspects of life. The corporate parenting principles provide a further lever for local authorities to engage with key partners and utilise Section 10 arrangements to co-operate to improve the well-being of looked-after children and care leavers.

The fourth principle, in particular, provides for local authorities to have regard to the need to help looked-after children and care leavers access and make the best use of services provided by the local authority and relevant partners. Strong interagency working, underpinned by Section 10, will be crucial to achieving this. The statutory guidance on the corporate parenting principles will emphasise it. It is also important to recognise that there are numerous examples of local authorities and other agencies already working effectively together in the interests of looked-after children and care leavers.

In his report Residential Care in England, Sir Martin Narey refers to the protocol between 10 local authorities and four police services. The protocol aims to reduce the prosecution of children wherever possible by encouraging the use of restorative justice approaches. Trafford provides another good example of strong interagency working. Here, collocation of social workers with health staff and child and adolescent mental health services supports good access to services.

What Peers are seeking to achieve across the country—indeed, what we want—is already happening. It just needs replicating and this is about disseminating good practice and influencing hearts and minds. The corporate parenting principles aid that process because they apply to the whole authority and are intended to create a culture change. We recognise, of course, that, despite the existing legislation to promote interagency co-operation, practice is not always as consistent as it should be. We therefore plan to engage further with directors of children’s services on this issue with the aim of identifying other positive practice and disseminating it more widely.

Given the strength of the existing duties to co-operate under Section 10, our intention to reinforce this in the statutory guidance on the corporate parenting principles and to continue the drive to improve and embed effective practice, I hope the noble Lords, Lord Watson and Lord Warner, will feel reassured enough to withdraw their amendments.

[Lord Warner]

My Lords, I think it is a missed opportunity, but I am glad that the Minister is going to put some of this into statutory guidance. In the meantime, I beg leave to withdraw my amendment.

Amendment 6 withdrawn.

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[Lord Watson of Invergowrie]

My Lords, Amendment 10 would place a new duty on local authorities to take reasonable steps to provide care leavers up to the age of 21 with suitable accommodation. It would also end the inequality between young people in stable foster care placements, who are entitled to stay with their foster family until the age of 21 under the “staying put” arrangements, and other groups of young people leaving care.

The Bill rightly aims to improve outcomes for care leavers, a group of young people who, as many noble Lords have said, face significant challenges. However, as currently drafted, we do not believe that it goes far enough to make a real difference to young people’s lives. Organisations supporting these young people have consistently said that safe and stable accommodation must be the starting point for improving outcomes in other areas. Education, training, employment and health would be the main examples. A 2015 report by the National Audit Office found that young people with a background in care were more likely to become homeless or to end up in custody. Indeed, the most recent figures from the Department for Education show that, in 2015-16, 7% of care leavers aged 19 to 21 were in accommodation considered unsuitable and the suitability of the accommodation of a further 11% could not be established. Equally, 4% of care leavers aged 19 to 21 were in custody, and 40% of care leavers in that age group were not in education, employment or training. All these figures combined show the scale of the task that faces us when we seek to look after young people leaving care.

When most young people leave home, they are usually able to continue to rely on their parents, as the noble Lord, Lord Warner, said, for many things, not least advice as well as practical and financial support. Young people who have been in care do not have that support system open to them. Many have significant emotional and mental health needs which are often due to a history of abuse or neglect. The transition to adulthood can be daunting at the best of times for all young people. By definition, looked-after children rarely experience the best of times and have to cope with multiple changes: finishing school or college; moving from child and adolescent mental health services to adult services; and often the need to find alternative living arrangements. Even among children in different forms of care, there is real inequality between care leavers who can stay with their foster family under “staying put” and all other young people leaving care.

The Government have promised to pilot “staying close”, which would offer accommodation to young people leaving residential care, but we understand there is to be no duty on local authorities to do so, and there is certainly no clarity on funding. As it stands, if you are not in a stable foster placement at 18, you may well end up in an unsafe or unstable accommodation placement or be homeless or sofa-surfing. Outcomes for care leavers in general will not improve until this issue is addressed.

In 2014, the Government recognised the importance of safe, stable and appropriate accommodation for care leavers. “Staying put” arrangements mean some young people can remain with their foster family until they reach 21. In 2015-16, of those who ceased to be looked after on their 18th birthday and who were in foster care, 54% of 18 year-olds, 30% of 19 year-olds and 16% of 20 year-olds were able to remain with their foster family. However, for other young people, including those in residential accommodation, who may be the most vulnerable of all and have significant needs, no equivalent support is available. This Bill offers an opportunity to ensure that all young people leaving care have an appropriate place to live until they reach 21 to help them start their adult lives.

In July, the Government committed to piloting “staying close” in Keep on Caring: Supporting Young People from Care to Independence. The aim is to explore models of accommodation for young people leaving residential care. That is to be welcomed, but Amendment 10 enables us to go a step further. I hope that the Government will look upon it favourably.

Amendment 12 in my name amends Clause 2. It concerns the local offer for care leavers and seeks to set up a national minimum standard that would set out the quality and extent of services to be offered by local authorities to care leavers. In a later group, we will discuss the national offer. I am aware that the Government, at this stage at least, are not minded to embrace such a concept. Setting out a national minimum standard is a similar approach in the sense of avoiding the postcode lottery that we all understand and that applies in different ways in different settings. That lottery could allow local authorities in some areas to provide a much less satisfactory service to care leavers than is provided in others. That is why it makes sense to set a national minimum standard. It would be no more than a minimum to be built on but it is necessary so as to have something on which to fall back.

Regarding the other part of the amendment, it makes sense to consult appropriately to ensure that the basis on which the national minimum standard would be set was one that carried the benefit of the experience of the various corporate parenting partners. It is important to say that the setting of a minimum standard is something that we need to do because the patchwork effect of the accommodation issues to which I referred in commenting on the earlier amendment show that there is no common policy across the country. That, surely, is not acceptable. For that reason, I beg to move.

[Lord Warner]

My Lords, I shall speak in support Amendment 12, to which I have added my name, but I should like first to add my support to Amendment 10. Affordable single-person accommodation is one of the areas in shortest supply in many of our cities. This is the pool in which we are often trying to find accommodation for these young people. They do need a lot of support. We are asking them to live independently and to battle their way through what is often a confusing and difficult accommodation market. Even older, more mature adults find it difficult to survive in that market.

We are setting these young people up to fail if we do not do more to help them to get into safe and suitable accommodation. It is no wonder, sadly, that we find so many of these young people having been in care sleeping rough in many of our inner cities, including not far from this place. Anyone who late at night wanders around the South Bank will find some of these characters who have been in care having a difficult time. When you talk to some of them, you hear that they have never had good accommodation.

The Minister should take this seriously. When I was chairman of the Youth Justice Board this area was one of the major contributory factors to many of these young people moving down a path of crime and into the youth justice system. Tackling it is therefore in everyone’s interests, not just those of the young people. I strongly support Amendment 10.

I also support Amendment 12. Too often we pass reforming legislation without saying what would be an acceptable level of response by those responsible for implementing that legislation. There is a long history of the lifetime outcomes for looked-after children being inadequate. We shall come to the issue of outcomes in a later amendment. To address this long-standing problem, the Government would do well to set out some national minimum standards for the services that must be offered under their local offer for care leavers. Far too many young care leavers do not know what they can expect from the authority that has been looking after them when they move into the wider world.

From my experience as the commissioner for children’s services in Birmingham—appointed by the current Secretary of State’s predecessor but one, who has since gone on to further fame—one also finds huge variations in the performance of some of the leaving-care teams within the same authority. This is not an area that has been well served by consistency even within the same authority. Setting some national standards would not just be helpful for consistency between authorities but would help some of the bigger authorities to have consistency within themselves. So I strongly support Amendment 12.

[Baroness Bakewell of Hardington Mandeville]

My Lords, I speak briefly to Amendment 10 and to agree with the comments of the noble Lords, Lord Watson and Lord Warner. In the market town in my own area, the number of beds available for young people in the excellent Foyer has been reduced over recent years, and it is now in danger of actually closing. As well as providing excellent accommodation to allow young people, especially care leavers, to move on and gain independence, it has provided training, other support and a coffee bar. It is a great shame, to put it mildly, that such a facility should be closed because of the lack of funding for the number of beds there.

As the noble Lord, Lord Warner, who is much more experienced in this area than me, has said, young people, especially care leavers, are very vulnerable and they require adequate quality accommodation to meet their needs.

--- Later in debate ---

[The Lord Bishop of Chester]

My Lords, I add my strong support for the amendment, which was moved by the noble Earl with a mastery of succinctness and clarity across the issues he covered, backed up by the other noble Lords who spoke. There are powerful arguments for the amendment.

We have just been talking about the importance of relationship education and support. That is exactly what care leavers typically do not have—by definition, if you like. Think of the degree of support that your Lordships have had to give to your children at the age of 19 to 24 and beyond. I see some smiles on your Lordships’ faces, and I could smile myself and put a price tag on it. It does not exactly run into millions of pounds, but it feels like it.

Giving a bit of extra help to those at that stage in their lives has a great deal to be said for it. Even if it cannot be given in all four areas set out by the Children’s Society in its briefing, some, at least, should be considered very carefully—I add that it is a Church of England society. I think the work it has done here is a model of professionalism. My right reverend friend the Bishop of Durham spoke to this on Second Reading, but he cannot be here today and I am happy to pick up the baton from him.

We are dealing with a group of people who typically have very little support—support we almost assume that our own children need at that age—so we must help with anything we can do. Earlier, I heard the Minister say that the danger with having a minimum or national standard is that it would interfere with what is provided locally. It is not either/or; it is both/and, surely. I did hear somebody on the television just a few days ago saying there is an important role for the state. I agree with the Prime Minister on this, and I think that there is a role here for national standards and encouragement.

Wonder of wonders, Cheshire East has been mentioned. It is a Conservative-run authority, blazing a trail, but should we leave it to a postcode lottery so that some authorities do this and some do not? That is very discouraging if you see it in those terms. While this is led by local authorities and a local offer, it does seem to me there is a strong reason for having a certain degree of national offer and national minimum standards. I think that is the spirit behind this amendment, and I strongly support it.

[Lord Warner]

My Lords, I support the amendment. However, I would like to put a very specific question to the Minister to which I would welcome a reply. The Minister will recall that, when you stand at the Dispatch Box, you speak for the Government, not just your department. When this Bill began, there was another Government he was speaking for, but he is now speaking for a new Government. That new Government have expressed great concern about helping those who are just getting by. This group of people are barely getting by and in some cases are not getting by. What this amendment does is provide a proposition which this Government—not the previous Government —need to consider. Can the Minister say whether this issue has been put to the new Ministers in the Department for Work and Pensions and DCLG? It would be very helpful to know whether this Government have considered this issue at a ministerial level and what their view is.

[Baroness Lister of Burtersett]

My Lords, what I would like to say follows on very well from the noble Lord’s very pertinent question. I am happy to support this amendment, which was moved so ably by the noble Earl, Lord Listowel.

A recent Joseph Rowntree Foundation document called We Can Solve Poverty in the UK, which was the product of a long and wide consultation, states:

“The prospects for young people leaving local authority care should be an overarching priority for government. Despite positive policy and legal developments, they continue to face unacceptably high risks of destitution and poverty”.

Destitution in 21st-century Britain for an extremely vulnerable group of young people really is unacceptable. As the noble Lord said, they are not getting by. In many circumstances, it is simply not possible for them to get by.

This amendment addresses some of the key policy drivers behind these very serious risks. The Government are rightly requiring local authorities to promote the best interests of care leavers up to the age of 25, yet their own policies fail to do so. I can see no justification for what surely must constitute double standards. There is a degree of acknowledgement of the arguments put earlier during the process of the Bill and of this case in Keep on Caring, which is very welcome, but I urge the Minister to go further today.

As already noted, no doubt cost will be cited. However, the costs are not prohibitive. Also, this needs to be considered in the context of another Joseph Rowntree Foundation report regarding the costs of poverty. It calculated that around two-thirds of total local authority expenditure on children’s services is attributable to poverty-related problems.

At earlier stages of this Bill, I quoted yet another Joseph Rowntree Foundation report, which looked at the links between poverty and the abuse and neglect of children. I quoted that report, which said:

“Poverty often slides out of focus in policy and practice”.

This amendment puts poverty back into focus and it addresses the severe poverty experienced by many extremely vulnerable care leaders.

--- Later in debate ---

[The Earl of Listowel]

My Lords, I want to flag up an issue around the wishes and feelings of children, as raised by the noble Baroness, Lady Walmsley. At a recent conference I was listening to a researcher who was herself a birth family sibling—so she had many foster carers move through her family. One of the fostered children in the family just disappeared one day without any notice to her. She emphasised the importance of listening not only to the voices, wishes and feelings of the child in care, but also to those of the children in the adoptive family or in the foster family. We must make efforts to understand the wishes and feelings of those children, partly out of respect for them but also, very often, because a foster placement or an adoptive placement might break down if the wishes and feelings of those siblings are not respected. If they do not welcome the child, if they feel that the stranger is an intruder into their home, coming between them and their parents, they can very easily undermine the ability of that placement to work. I just wanted to flag up that point.

I welcome the fostering care stocktake that is going on in the Department for Education, which I hope will answer some of the concerns of the noble Lord, Lord Hunt, about parity of esteem for adoption, fostering and residential care. All these are important options. We want to find continuity of care for young people, wherever they are in the care system. I just wanted to flag up that point and I look forward to the Minister’s response.

[Lord Warner]

My Lords, my name is attached to Amendments 30, 31 and 34. I say to the noble Baroness, Lady King of Bow, that there have been Ministers in this House who have made concessions on the basis of the evidence before them; the noble Lord, Lord Nash, is not unique in this, although I am very grateful for the concessions he has made.

Let me start with Amendment 30. Going back in time to when I first became a director of social services in the mid-1980s, and having never, I have to confess, even been in a social services department in my life before, the very first briefing I was given by these luckless social workers who suddenly found that this strange man had been placed in charge of their department was on the importance of permanence and that if I did nothing else in my time as a director, I must promote planning for permanence. That has stuck with me as a big issue. The second briefing said: “You cannot rely on adoption to deliver permanence. Everybody likes to adopt babies and young children but you will find, oh dear director, that there are going to be a lot of children, from the age of 10 and moving into the teenage years, for whom you will have to plan for permanence, and adoption is not the issue”.

Any social worker starting out in their career over the last two or three years could be forgiven for thinking that the real answer to permanence is adoption. The points made by the noble Lord, Lord Hunt, are critical: if we believe in permanence as the aim of what we are trying to do—as we all do—we must not give any signals that longer-term fostering is not a perfectly valid option in planning for permanence. We must not delude ourselves, or allow ourselves to look as though we are deluding ourselves to the social work profession, that adoption is the only answer and that, somehow, longer-term fostering is an inferior option for permanence planning. So I hope that the Minister will think about that and what the impact of all this is on the profession, working day in, day out, on the front line trying to deal with and provide a more permanent solution for many of these children. We need an amendment of the kind that has been framed in Amendment 30 to restore the balance.

We discussed the issue in Amendment 31 pretty extensively in Committee. In those discussions I recall that the noble and learned Baroness, Lady Butler-Sloss, with all her experience in the family courts, said that all too often the voice of the child was absent from our legislation and court processes. She made much of that then, and there is an opportunity now, with Amendment 31—which, if I may say so to the Minister, is just five little words—to put clearly, fairly and squarely in the legislation an amendment that gives the voice of the child some recognition in the legislation. It will not cost the Government anything, so the easiest thing for the Minister to do shortly would be to stand up and say, “I accept Amendment 31”. He will then go out of this Chamber at the dinner break even more flushed with success and encouragement from the Members of your Lordships’ House. As the noble Baroness said on Amendment 34, this is a straightforward way of removing a disincentive to taking siblings into adoption. I am glad that the Minister is going to make a concession on that, but if he is in for one, why not go for a couple of others as well?

[Lord Nash]

My Lords, I shall speak to Amendments 30, 31 and 34, which concern the decision-making process about how a child becomes looked after and where they should be placed, and the state benefits which families of adopted children should be entitled to. There is also the matter of wishes and feelings. I am very sorry to disappoint the noble Lord, Lord Warner, but I understand that after very helpful discussions between the noble and learned Baroness, Lady Butler-Sloss, and my officials, she—or somebody on her behalf—plans not to move her Amendment 31. I believe she now recognises that it is not necessary, although my officials found the meeting with her extremely helpful. The child’s wishes and feelings are taken into account by local authorities when a child is looked after. This is a legal requirement under Section 22(4) of the Children Act 1989. When any decision is taken with respect to a child who is looked after, the local authority must ascertain their wishes and feelings.

Amendment 30, tabled by the noble Lords, Lord Watson, Lord Hunt and Lord Warner, proposes new wording for the permanence provisions of care plans in the context of care proceedings. As I stated in Committee in response to such an amendment, I recognise the concern that adoption should not be seen as more important than other long-term placement options. In answer to the point raised by the noble Lord, Lord Hunt, I can state clearly that there is no intention to create a hierarchy here between placement options. We want all children in care, or entering care, to find placements that provide stability and suit them. This is what we mean by permanence; there are different ways to achieve it for different children.

Clause 8 seeks to improve the decision-making process about where a child should be placed, whether that be adoption, with a special guardian, with foster parents or in a children’s home, by having particular regard to the child’s needs and how any placement options would meet those needs. The amendment seeks to explicitly set out in Section 31 of the 1989 Act a list of placement options, such as foster care. However, all placement options, including foster care, are already included within the current legal definition for permanence provisions. Section 22C of the Children Act 1989 and the accompanying statutory guidance set out clearly how all looked-after children, including children subject to care orders, are to be accommodated and maintained by local authorities. This includes a hierarchy of placements with parents, relatives, friends or other persons connected with the child, kinship foster placements with local authority foster carers and placements in children’s homes.

Local authorities and courts are very clear about what placement options they need to consider during care proceedings. Amendment 30 is therefore not necessary and would not add to the existing legislative framework. It would simply duplicate what is already set out elsewhere in the Children Act 1989, which is something that Governments always try to avoid. As the noble Lord, Lord Hunt, said, Section 22C clearly says that foster care is an option set out for local authorities and courts to consider, and this includes long-term foster care. Local authorities and courts understand this, and I am advised that no one is confused in practice on the issue. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Amendment 34, tabled by the noble Baroness, Lady King, and the noble Lord, Lord Warner, proposes a new clause so that child-related benefits would be payable to adopted children regardless of any limit on the number of children to whom those benefits are usually payable. As noble Lords will know, the Welfare Reform and Work Act 2016 legislated for the child element in child tax credit and universal credit to be limited to two children from April 2017. I was delighted to announce in my letter to noble Lords on 11 October that where a family adopts a child from local authority care and this increases the number of children in the family to three or more, all third or subsequent adopted children will attract the child element of either tax or universal credit. This will be provided for, along with the other exemptions, in regulations and is good news for families who come forward and give a loving home to some of our most vulnerable children. It represents another example of the Government’s ongoing commitment to support these children and their families.

I am grateful to the noble Baroness, Lady King, for her kind words. As the noble Lord, Lord Warner, said, I may not be unique in listening to rational arguments but I may be unique in being incapable of resisting the noble Baroness’s charms and the powers of her arguments. I am sure that we will all miss her and I wish her and her family all the best in California. I hope that it will not be long before we see her back on those Benches.

Amendment 32 would simply ensure that Clause 9 will now apply to adoption agencies in Wales, whereas the previous draft of this provision applied to courts in England and Wales and adoption agencies in England. It will also mean that the provision of the new duty will come into force at the same time in England and Wales. The department has agreement from the Welsh Government to lay this amendment, in anticipation of the Assembly scrutinising the required memorandum before agreeing a legislative consent Motion.

In conclusion on all the amendments that have been discussed, I hope the noble Lords, Lord Ramsbotham, Lord Watson, Lord Hunt and Lord Warner, will feel reassured enough to withdraw or not press their amendments, and that the House will support the Government’s amendment.

Children and Social Work Bill [HL]

Lord Warner Excerpts

Tuesday 18th October 2016 Lords Chamber

[Baroness Pinnock (LD)]

My Lords, it seems to me fairly demeaning that the state cannot collectively care for vulnerable children without resorting to a profit motive. In all the private meetings we have had with Ministers in regard to the Bill, we have been reassured that there is no background intention on the part of the Government to enable services to be outsourced to give a profit motive. That would require a change in legislation. The period of changes that we are now undergoing needs guarantees and I point to a report that I believe was in the Guardian newspaper a couple of days ago, which refers to Sandwell Council having been ordered to contract out its children’s services. It will mean,

“that services, including child protection investigations, making applications to the courts to have children removed from their families and the management of children in need plans will be outsourced to an independent organisation, and accountability will only be back to the council through a contract”.

I thought we would have learned enough from the academisation of schools to know that contracts do not necessarily provide sufficient accountability, either for financial management or—certainly not—for providing services in the best interests of children. We are talking about the most vulnerable children. As far as I can find out, no other country allows this sort of intrusion by a private company into the lives of vulnerable families, and decisions about the welfare and protection of children to be taken by private companies which are not directly accountable to the state, either to the Government, or in this case to local authorities. It raises a fundamental principle. As we have discussed at great length throughout the Bill, we are all very concerned to provide the best possible protection and care for vulnerable children. However, we are possibly undermining that by allowing and enabling the outsourcing of children’s services for a profit motive, which by its very nature may result in children not being first and foremost in the mind of the company undertaking the work.

For those reasons, we totally support the amendment in the name of the noble Lord, Lord Ramsbotham. We hope that the Minister will be able to give a categorical assurance that the outsourcing of children’s services for profit will not take place, and that, failing that, he will include such an assurance as an amendment at Third Reading.

[Lord Warner (CB)]

My Lords, I shall speak to Amendments 33 and 35, to which I added my name. It is very clear from the Bill that government Amendment 54 is much narrower than Amendment 33. I do not want to get into the detail of that amendment—we will discuss it in due course—but it relates only to the power-to-innovate section. From my reading of the Bill, it does not have the more general effect that the amendment of the noble Lord, Lord Watson, does. So there is still an issue, even if one accepts the good offices of the Government on Amendment 54.

Perhaps we might explore a little more the issue of profit. We started to do this in Committee and I think that we got into a bit of a muddle. I am not a staunch supporter of public monopolies, so I do not have a problem with a degree of competition. I was at the event that LaingBuisson organised for the department on the whole issue of market-making, particularly in relation to failing organisations. I am not sure whether the Government have ever published the report that LaingBuisson produced—but it certainly did produce a report. I spoke at the conference, where there was a strong feeling that there were certain functions that needed to be carried out by a state body. I think that the question of whether you could contract out some of those services to a not-for-profit social enterprise or a voluntary organisation started to get a bit fuzzy, but there was a very strong core feeling that some of the services charged with statutory child protection were not areas that you could contract out. Then we went through a range of services where people were more or less comfortable with the idea of a degree of profit-making.

Here, it is important to be very clear about what we mean by profit-making. I mean profits that are available to be distributed to the shareholders of the organisation. I do not think that we could run very good services for children in their entirety if we did not accept some voluntary organisations running the services on a contract basis. However, that is on the basis that they are perfectly entitled to create a surplus in some of their activities in order to reinvest that money in the services they provide. That is a perfectly reasonable proposition, and we certainly do not want to put anything in the Bill that stops people having a contract with local authorities, not to make profits in the well-understood sense of profits to be distributed to shareholders but to run the services efficiently so that they can engender some kind of surplus that can be reinvested to make the services better, particularly as demand for some of those services increases over time. So the Government need to come clean about what happened when they had this interest and set LaingBuisson loose on the whole market-making issue, because it has raised a great deal of concern in the wider world of children’s social care about their intentions. A little more clarity on what they are in this area would be very welcome.

--- Later in debate ---

Moved by

[Lord Warner]

40: Clause 12, page 12, line 10, at end insert—
“(c) handling the implications for a local authority’s discharge of their safeguarding responsibilities in respect of any judicial decision-making in a particular review.”

[Lord Warner]

My Lords, we now turn, slightly later at night than I would have liked, to Amendment 40 in my name, which seeks to encourage the Secretary of State to cover in guidance what happens when the actions of a court have implications for the way that a local authority discharges its safeguarding responsibilities but these cannot be considered by the new Child Safeguarding Practice Review Panel.

I have framed this amendment in the way I have because of my considerable concerns about what happened in the tragic case of Ellie Butler, who was placed by the court with her father, who brutally murdered her some months later. We went over that ground in Committee and I am grateful to the Minister for the letter he wrote to me on 9 September—I think he copied it to other Members who spoke in those Committee debates. However, that letter raises more questions than it answers.

Leaving aside the devastating consequences of the judge’s error of judgment—for which, incidentally, I would say a social worker would have been publicly crucified—the case raised some serious systems issues that the new review panel apparently cannot explore, because the Government are ruling that it would be unconstitutional for the panel to review the conduct of a judge. Yet the Minister’s letter makes it clear that the guidance in Working Together, published in 2015, does not specify that the judiciary is exempt from the serious case review process. We have here a conflict between what the Government’s guidance says and what the Minister is saying during the passage of the Bill.

This ruling by the Ministry of Justice that it is unconstitutional seems to mean that no learning can take place from erroneous behaviour by the courts. This is particularly important in this case, because of the judge’s rulings in relation to the local authority, which I think has also been discussed between the London Borough of Sutton, the MoJ and the Minister’s department. The judge’s ruling in relation to Ellie Butler meant that the London Borough of Sutton, which had been responsible, with some success, for protecting Ellie became debarred from exercising the safeguarding responsibilities conferred on it by Parliament. Sutton had been exercising its statutory duty to safeguard children in the borough—a duty, as I say, conferred on it by Parliament.

However, the judge appointed two private independent social workers to review the local authority’s decision-making. These seem to have advised that it was safe to place Ellie with her parents, a diametrically opposed view from that of the local authority which had been safeguarding this child. These social workers, commissioned by the court, appear to have had no background experience of Ellie’s situation and to have been a small partnership without the back-up resources and supervision, including legal resources, of a local authority. My understanding—the Minister may want to confirm or deny this—is that entities such as those independent social workers are unregulated. They will be on the register as a social worker but we know no more about them. They are on a panel list but there is no regulation, as I understand it, of partnerships of independent social workers. I would be grateful if the Minister and his department can tell me whether that is correct.

It gets worse, because the judge also seems to have ruled that the local authority should desist from contact with the family, thereby effectively debarring it from discharging its obligations to safeguard Ellie—or, indeed, the other child who, as I understand it, was in that household. Again, I understand that the various agencies were also told to remove information about the father from their records. This is all in the public arena. I am not making this up; it is what happened in this particular case. Sadly, history suggests that there may well be other Ellie Butler cases of some kind, which is why the Government are setting up a very important Child Safeguarding Practice Review Panel at the national level.

If the Government are to set up a new and more powerful national child safeguarding review panel, which I and I think other Members of this House totally support, it seems somewhat bizarre to prevent it exploring behaviour in the courts that could put vulnerable children at serious risk. For example, how are the courts to learn the errors of their ways and be provided with guidance and training? Perhaps as worrying is the clear lesson from this case that a court can apparently set aside a statutory duty placed on local authorities by Parliament to safeguard children in their area. To say the least, this is a very confusing situation in which to place local authorities and their hard-working social workers.

I know that there is supposed to be, or may have been, a meeting between the London Borough of Sutton and the President of the Family Division, but I am most intrigued about what the Family Division will do regarding this case. Will it give guidance to judges? Will it affect the training of judges in cases of this kind? Who knows? What we now have is a cloak of silence over what happens in the courts when something goes badly wrong.

My belief is that the Government should at the very least accept an amendment of the kind that I have produced. It would require the Secretary of State to make it clear in guidance what actually happens if the courts are to be excluded from the work of the new safeguarding review panel. How are social services departments to behave and learn from that experience? What relationship will there be with the Ministry of Justice and the courts for learning from mistakes, which will from time to time inevitably be made in the courts? Judges are human beings and not perfect. From time to time, they make mistakes. At the least, we have to make it clear in the guidance that goes out to local authorities about this new panel how they should deal with a situation of the kind that arose in this case. I beg to move.

[Baroness Pinnock]

My Lords, I thank the noble Lord, Lord Warner, for raising this issue. It looked a fairly innocuous amendment when I read it in the Marshalled List but out has come a really powerful case, based on an actual case that went before the courts, for a change in the Government’s legislation. So far as I can tell, there have been no answers as a result of that appalling tragedy, which was partly brought about by the judgment of the courts. The noble Lord, Lord Warner, is challenging the Government to be as responsive to errors in the courts as they are to errors in social services safeguarding practices. There is a case to be answered and I look forward to the Minister’s response.

--- Later in debate ---

[Lord Nash]

My Lords, I am grateful to the noble Lord, Lord Warner, for this amendment and for the important issue that he has raised. As noble Lords will recall, in Grand Committee he raised the role of the judiciary in serious cases involving children, with particular reference to the tragic case of Ellie Butler. I have since written to him further on this matter, as he said. Noble Lords will also recall that, in the Butler case, Ellie’s father had his conviction for grievous bodily harm in relation to injuries suffered by Ellie overturned by the Court of Appeal. Later, a finding of fact judgment, which took place as part of care proceedings, was also overturned. That led to the return of Ellie and her sibling to the care of her parents, a process overseen by an independent social work agency under instruction from the court, as the noble Lord, Lord Warner, has said. Tragically, within a year of being returned to her parents, Ellie was murdered by her father.

No one can fail to have been moved by the circumstances of that case, and it is understandable that queries have been raised about the impact of judicial decisions in particular cases, and the role of the judiciary in the serious case review process more generally. However, as the noble Lord, Lord Hunt, has mentioned, the judiciary is independent and, for constitutional reasons, it cannot and should not be held to account by the current serious case review process, or, in future, by the Child Safeguarding Practice Review Panel. This does not mean that there is no process for responding to decisions made by judges—which may be appealed at the time. Alternatively, if there is concern about a judge’s conduct, a complaint may be made to the Judicial Conduct Investigations Office.

I appreciate the noble Lord’s concern—which he has also put in writing to me— about the potential impact of judicial decision-making on the ability of local authorities to discharge their statutory functions. I agree that this may be a matter which reviews carried out on behalf of the panel could highlight. The noble Lord will appreciate that, through this Bill, it will be the role of the Child Safeguarding Practice Review Panel to identify serious child safeguarding cases that raise issues which are complex or of national importance and to supervise the production and publication of reviews. The panel will certainly be concerned to make recommendations, through its reviews, as to what improvements should be made by safeguarding partners or others in respect of the safeguarding and welfare of children. Where such recommendations relate to, or could relate to, judicial practice, the Department for Education will continue to work closely with colleagues from the Ministry of Justice to communicate these recommendations to the judiciary, so that the judiciary can consider what, if any, impact there should be on judicial practice. Judicial practice does, of course, remain a matter for the judiciary itself.

It is not that the panel cannot review and make recommendations; it can. It just cannot direct the judiciary, although we will work with it to make sure that lessons are conveyed. Given the panel’s remit and concerns that have been expressed regarding the need for the panel to be independent of the Government, I do not feel that it would be appropriate to include guidance from the Secretary of State to the panel on this issue. The panel must be free to set its own terms of reference for individual reviews, and I would expect this to include consideration of how a local authority has discharged its safeguarding responsibilities under all circumstances—or if, indeed, it had had difficulty in discharging them for whatever reason. Indeed, this consideration would also apply to all other agencies and could be a significant finding in a review leading to improved practice across the country. However, as each case will be different, general guidance to address what will be a case-by-case consideration is not likely to be beneficial or practicable.

On whether independent social workers are regulated, I assure the noble Lord that all social workers are professionally regulated. In view of this, I hope that he will be reassured about the scope of the panel’s functions, including the need for the panel to be able to treat each situation on a case-by-case basis and make the recommendations it sees fit, and therefore will feel able to withdraw the amendment.

[Lord Warner]

I am partially reassured. The Minister mentioned appeals, but they can take a very long time, and there is a very good chance that Ellie would have been dead before an appeal was heard in her case.

There is another constitutional issue, which is that judges should not be able to change the law. In this case, the judge changed the law and inhibited the local authority in discharging its statutory safeguarding duties. I ask the Minister to think a bit more about this and to look at the guidance in Working Together to Safeguard Children because it is not consistent with what he has said today. I beg to leave to withdraw the amendment.

Amendment 40 withdrawn.