Children and Social Work Bill [HL]

Debate between Lord Watson of Invergowrie and Baroness Lister of Burtersett

Wednesday 29th June 2016 Grand Committee

[Baroness Lister of Burtersett]

To add to that, the danger is that government policy will undermine what local authorities are trying to do. That is why we need government policies that will work with and support local authorities in their corporate parenting, rather than working against them.

[Lord Watson of Invergowrie]

My Lords, I shall speak to Amendments 4 and 31 in this group. Clause 1(1)(d) refers to “relevant partners” but, as the noble Lord, Lord Ramsbotham, stated, that is too vague. I want to emphasise some of the benefits of explicitly including health and housing services in that framework of support.

As my noble friend Lady Lister said, looked-after children, young people and care leavers historically experience poorer health than their peers and are also more likely to need specialist health services than the general population—whether that be mental health services, help with addictions or sexual health advice. Looked-after children, surely, must have access to mental health services and the speech, language and communications support that they need.

None the less, as the Local Government Association has pointed out in briefings sent to noble Lords, children’s services are already overstretched and any new duties must be fully funded so that they do not have an unintended detrimental impact on other services for vulnerable children and young people. Expansion of corporate parenting duties took place in Scotland in 2014 and, for the most part, has been a success without requiring any additional investment from central government. Perhaps there are lessons to be learned there.

Currently, looked-after children are supported by a social worker, an independent reviewing officer, a carer and a personal adviser who advocate for their interests. The most important thing is to ensure that there are good outcomes, and for that to happen there should be a focus on continuity and building strong relationships, not simply adding an additional member of care staff to the structure.

For the NHS to contribute effectively to the corporate family, health services must be able to identify looked-after children and young people accurately, and local authorities must help it to do this. The NHS provides services to assess individual need and provides access to therapeutic services resourced to meet those needs.

Where children are not within mainstream education provision, access should be co-ordinated to make sure that they receive health promotion advice and appropriate health checks, including, most importantly, mental health checks. A lead clinician could be appointed to co-ordinate mental health support in each local authority area.

The days when social housing was provided mainly by local authorities is long gone. Housing services provided directly by councils or in partnership with housing associations remain an integral part of the corporate family. Throughout the country there are many housing associations with close links to local authorities in terms of providing housing for groups of people with specific needs, and care leavers are clearly one of those groups. Homeless people are another and, without proper support, young people in the first of those categories can easily slide into the second one. Care leavers are particularly vulnerable to homelessness, and preventing homelessness among care leavers should be recognised in local strategies and plans.

Moving into independence involves more than simply finding a roof. Corporate parents should satisfy themselves that young people leaving care have the necessary life skills and confidence to cope with independent living. Some young people will need more support than others, and that is why a range of services needs to be made available—and this should include the type of tenancy offered. A single person’s tenancy may not be the best option for a young care leaver striking out into the big, and possibly bad, world for the first time.

The noble Baroness, Lady Howarth, talked about this transitional period. She urged us not to talk about people leaving care but to people moving on. That is a very apt description. Health services as well as housing services must support people as they make the difficult and inevitably demanding move into independent life.

The local offer made to care leavers will lack both authority and effectiveness if it is restricted to the list appearing in Clause 1. Given the debate that we have had within this group, that is unlikely to remain the case. If the corporate parenting principles were applied to health agencies, it would encourage them to take greater responsibility. The same would be true of housing.

In closing, I will say that the call of the noble Lord, Lord Ramsbotham, for consistency is important. He suggested that that could be achieved through some kind of tick list of what agencies are required to be involved. I hope that I do not do them a disservice by saying that my noble friends Lady Lister and Lord Warner support the principle of extending the agencies involved—and so do I.

I hope that the Minister, having heard the various comments in this debate, will accept the amendments in principle and come back on Report with an amendment that broadens the scope of Clause 1.

Immigration Bill

Debate between Lord Watson of Invergowrie and Baroness Lister of Burtersett

Tuesday 1st April 2014 Lords Chamber

[Lord Watson of Invergowrie (Lab)]

My Lords, I shall speak to Amendments 16 and 20 in this group, which appear on the Marshalled List in my name.

Amendment 16 would ensure that the Bill recognised that the promotion of the best interests of the child is not simply a matter of the rights to be interfered with being in the public interest but that the promotion of those best interests is, in itself, in the public interest. In its current form, Clause 18 does not allow for proper consideration of the best interests of all children, as required by UK and international legislation. Despite government Amendment 58 reiterating their commitment to the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, Clause 18 does not make clear the need for the best interests of children to be a primary consideration in any Article 8 case involving a child. That includes those who are not British citizens and those who have not lived in the UK for at least seven years.

Amendment 58 does not address the concerns raised by non-governmental organisations, including the Refugee Children’s Consortium, about the lack of an explicit provision in Clause 18 to have regard to children’s best interests. What is required is a provision stipulating what judges must have regard to in the public interest when considering Article 8 of the European Convention on Human Rights in respect of family and private life.

Courts and judges are not under a statutory obligation to comply with the Section 55 duty. Instead, they review the Home Secretary’s decisions and actions in the light of her own duties. The courts have made it clear that children’s rights are a clear public interest consideration in addition to their own personal interests. As the Joint Committee on Human Rights notes in its scrutiny of the Bill, Parliament is entitled to put into primary legislation that which it considers to be in the public interest. The lack of a clear statement setting out the importance of children’s best interests as a factor to be considered creates a risk that children’s best interests will not be taken into account as a matter of public interest to the same degree as those public interest considerations listed in Clause 18. In its evidence to the Bill Committee, the Immigration Law Practitioners’ Association stated that Clause 18 directs attention to some factors at the expense of others. The most obvious missing factor is the best interests of children.

In 2012, the Supreme Court held in the case of HH—UKSC 25—that children’s interests are also public interests and not just private rights, stating,

“although the child has a right to her family life and all that goes with it, there is also a strong public interest in ensuring that children are properly brought up”.

In this respect, the Bill is not consistent with established case law and gives the impression that children’s interests amount to no more than the private and personal interests of an individual and their family. They clearly amount to more than that and this should be reflected in the Bill.

Amendment 20 reflects the fact that “unduly harsh” is an incorrect test of the context of considering what is best for a child, whereas “disproportionate” is known and well understood. New Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by this Bill and relating to Article 8 of the European Convention on Human Rights, states:

“Exception 2 applies”—

where there is—

“a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.

The “unduly harsh” test in relation to children is not consistent with the best interests principles. This test of “unduly harsh” is a legally defined term within the context of refugee protection and internal relocation. I should like to cite an example and I do so in due deference to the noble and learned Lord, Lord Hope. I hope that he will not mind if I quote from a case over which he presided in 2007—the case of the Secretary of State v AH (Sudan) and others. In that judgment, the noble and learned Lord was quoted as having stated in another case:

“‘The question ... is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally ... it will not be unreasonable to expect him to move there’”.

However, I do not believe that that test can be applied within the context of considering children’s best interests. Surely a child should not be expected to live a relatively normal life judged by the standards that prevail. That is not and, I submit, cannot be a best interests consideration. When considering a child’s best interests, a range of issues need to be taken into account, such as the child’s immediate safety and their access to, and the quality of, vital services such as healthcare and education. In addition, under the UN Convention on the Rights of the Child, every child has a right to be cared for by his or her parents. In fact, Article 9 says:

“States … shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.

The audit carried out by the UNHCR last year of Home Office procedures highlighted that there is no systematic collection or recording of the information necessary and relevant to a quality best-interests consideration in family cases. This includes a lack of any mechanism to obtain the views of the child and to give those views weight in line with age and maturity. Research carried out by the Greater Manchester Immigration Aid Unit into unaccompanied children’s asylum cases found that in 24 of 34 cases analysed, the Home Office failed to carry out any determination of the child’s best interests at all. The Joint Committee on Human Rights highlighted similar concerns in its scrutiny of this Bill, noting that without further clarity,

“there is a danger that front-line immigration officials … will be unclear about the relationship between the children duty in s. 55 and the new tests … which use different and unfamiliar language”.

The Government have said that, despite the introduction of tests in the courts, the courts would still be bound by the duty to promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 for all cases involving children. However, Clause 18 is likely to add further confusion, not least for decision-makers, as to how best interests are to be considered. Therefore, I believe that effective judicial oversight is crucial in ensuring that children’s best interests are taken into account in any case involving a child, and these considerations need to be made clear in the Bill.

In conclusion, considering whether it would be duly harsh to separate a child from his or her parent is inconsistent with the obligations to consider the child’s best interests. Perhaps I might invite the Minister to explain just what he understands “duly harsh” and “unduly harsh” to mean. At precisely what point does “duly harsh” become “unduly harsh”, and who decides where the line is crossed? The use instead of the term “disproportionate” at least allows for a balancing exercise within the well established approach to interference with Article 8 rights, which must include consideration of best interests. I very much hope that the Minister will take these points on board and I look forward to his response.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak to Amendment 21, supported by the noble Lord, Lord Pannick, and now, I believe, by the noble Lord, Lord Roberts, and perhaps in spirit by the right reverend Prelate the Bishop of Leicester.

First, however, I welcome Amendment 58 in the names of the noble Earl, Lord Listowel, and the noble Lord, Lord Taylor of Holbeach. This addresses one of the concerns raised by the Joint Committee on Human Rights, of which I am a member, as to how the Bill’s provisions were to be read alongside the Section 55 duty to safeguard and promote the welfare of children. But, sadly, as my noble friend has already said, it does not meet our related concern that Clause 18 should make explicit that the best interests of children must be taken into account as a primary consideration. I would be grateful if the Minister could explain on the record the implications of Amendment 58 for Clause 18, building on what the noble Lord, Lord Taylor, said earlier. As it is, I am still perplexed as to why the Government refuse to accept the best interests amendment, given that the Minister said very clearly in Committee:

“We believe that the children’s best interests must be a primary consideration”.—[Official Report, 5/3/14; col. 1384.]