Children and Families Bill

Baroness Butler-Sloss Excerpts

Monday 9th December 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I start where my noble friend the Minister started by referring to the series of meetings that he and his colleagues arranged as well as the many papers—I cannot remember what term he used, but it was a lot of paper, which was welcome—that we received during the period starting before the end of Committee. I do not think that I have ever known so many meetings as he was able to arrange, but they have been extremely helpful. Because we are on the first day of another stage of the Bill, I need to declare interests as patron of the Intercountry Adoption Centre and of PAC and as a president of London Councils.

It will not be a surprise that I support and welcome this amendment. I thank the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth of Breckland, for their support in Committee, the officials who struggled with the technicalities of the not-very-easy current provisions and, most of all, the Minister, who dealt with the matter with care and, if I may say so, very effective pragmatism. I know that I pass on the thanks of the British Association for Adoption and Fostering and the Law Commission, both of which were involved, and of the individuals who have campaigned for this change. I have been able to show to the Bill team the very grateful and excited emails that I have had from the lady who has led the campaign. She and those with whom she is in touch can see that they will be able to answer questions about their own heritage, medical issues and indeed their very identity.

I understand the Government’s caution to ensure that the extent of the new rights is appropriate, and the Minister has given us an assurance as to children and grandchildren being the minimum within the prescribed relationships. I hope that he can assure the House that the consultation on this will take place very soon after Royal Assent and that the necessary regulations are expected to follow very speedily so that the anomaly that has been identified can be corrected with the minimum of delay. I thank him and his colleagues very much indeed.

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest at the beginning of the Report stage as a governor of Coram and as a patron of, among others, BAAF, PAC and Childhood First.

I start by saying that I think that this is a good Bill, though it needs some improvements. What is absolutely splendid is that in certain places the Minister has listened with great care and, like the noble Baroness, Lady Hamwee, I am extremely grateful to him, not only for a number of very useful meetings on this particular amendment and indeed others, but also for the outcome. I am really very grateful indeed and look forward to that being a source of relief to a number of families.

[Lord Nash]

My Lords, I assure my noble friend Lady Hamwee that we will consult on this immediately after Royal Assent. I thank both her and the noble and learned Baroness, Lady Butler-Sloss, for their comments.

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Moved by

[Baroness Butler-Sloss]

2: Clause 2, page 2, line 12, at end insert—
“( ) In subsection (4)(d) (matters to which court or adoption agency must have regard), after “the child’s age, sex, background” insert “and (except in relation to an adoption agency in Wales, to which subsection (5) applies) religious persuasion, racial origin and cultural and linguistic background.”

[Baroness Butler-Sloss]

My Lords, I said that this was a good Bill; none the less, there are certain aspects of it with which, respectfully, I do not agree.

This amendment relates to comments at the beginning of the pre-legislative scrutiny report by the Select Committee on Adoption Legislation, which I had the honour of chairing. It was the unanimous view of the members of that committee that, compared with the previous position, the Government had gone too far in the opposite direction. Section 1 of the Adoption and Children Act 2002 lists eight considerations applying to the exercise of powers. The previous Government had included subsection (5) as a separate subsection. It reads:

“In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background”.

Instead of being one of a number of considerations, that was out front. The result was that social workers, who were dealing with what is properly called the “ethnicity question” up front, were refusing to place children for adoption with parents who were not of the same colour, the same persuasion or whatever, and this was impeding the very natural and highly to be commended desire of this Government for adoption to move speedily.

The Government therefore decided to take Section 1(5) out of the Adoption and Children Act 2002. So far, so good, but now they have gone too far the other way because it does not appear anywhere. The nearest you get to it is Section 1(4)(d) of the Adoption and Children Act 2002, which reads,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”.

The Government’s view is that that covers the ethnicity point but I do not share that view. The evidence that the Select Committee received was that, whereas social workers paid too much attention to that consideration when it appeared as a separate subsection, there was now a very real danger that they would not pay any attention to it at all. Matters which are of considerable importance to a child—their religious persuasion, racial origin and cultural and linguistic background—have to be taken into account. They must not be permitted to frustrate a proper adoption if the circumstances of the adoption come outside one of those matters but they must be included in the checklist of the various points to which the social workers, the adoption agency—but usually the social workers—and the court must have regard, and removing them presents a problem.

I have had various meetings with the Minister and I even gave him a cup of tea this afternoon before we embarked on what is going to be a very long evening. However, I am afraid that I am not persuaded by his suggestion that there should be statutory guidance. Having it on the face of the legislation means that it has “an importance” but not “the importance”, whereas we all know that, although statutory guidance is important, it may not necessarily be read as carefully as it might be. However, it cannot be entirely ignored if it is in primary legislation. I share the Select Committee’s thought, which was to tuck it in neatly into subsection (4)(d), so you would read it as,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”.

This would then include,

“religious persuasion, racial origin and cultural and linguistic background.”

It would not be too prominent, but it would be there. For those reasons I wish to pursue this amendment, and I beg to move.

[Baroness Hamwee]

My Lords, I have the other amendment in this group. Like the other members of the Select Committee, I agreed that certain characteristics of a child for whom adoption was sought should not be highlighted as if they overrode everything else. Like the other members, as the noble and learned Baroness has said, I was concerned that the wrong message might be taken from new legislation. In taking out a provision for due consideration—because that is all it is, not an overriding consideration—to be given to the child’s,

“religious persuasion, racial origin and cultural and linguistic background”,

Parliament would be saying that no consideration should be given. Like the noble and learned Baroness, I fear that guidance would not be enough in that situation.

I do not think we said this in Select Committee, but I am fearful about this. England would not be in the same situation as Wales. Wales will be keeping this wording. The fact that adoption is a devolved matter does not answer the concerns that I have. It would be seen as a very significant distinction. This swinging political pendulum has got to end up in the middle. As the noble and learned Baroness has said, it is not an overriding issue, nor something to be entirely discounted. In Committee I said there had been oversensitivity to what some parts of the media regard as political correctness. I know that the Minister’s concern is that minority-ethnic children are being short-changed. Sadly, the cohort that is being short-changed is the many children from all sorts of backgrounds who are waiting for adoption. The problem is the imbalance between their numbers and the numbers of prospective adopters. To adopt, one needs to be sensitive—to be understanding of the importance of religion, of racial origin, of cultural and linguistic background. It is not a matter of “being the same as”. People who are the same may not understand, and may not be sensitive enough. But that sensitivity, that openness, addressing issues which may arise—that is the matching which is important, not the direct same characteristics.

As the Government were not been persuaded in Committee, a different approach might appeal. My amendments would take out the references to age and sex so that the court and the agency should have regard to the child’s background and characteristics, because those cover everything. The Minister has said that background and characteristics must include ethnicity. He said that is a matter of plain English. Age and sex are also characteristics, so I hope that my plain English amendment might be helpful.

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[Lord Nash]

I am grateful. I understand entirely the noble Baroness’s position. The guidance will also state that adopters of a different background/ethnicity may need additional training and support to help them support their child. This will include how to identify and deal with racism. On the matching process, it will ensure that the adopters can engage with the cultural background, heritage and ethnicity of the child. We will take my noble friend Lady Benjamin’s point about the importance of the child’s life story—the life book—and ensure that this point is in the statutory guidance. I am grateful to my noble friend Lord Eccles for his support for this approach.

We do not think that having ethnicity in guidance but not in legislation is confusing and we are funding the British Association for Adoption and Fostering to provide training seminars for all local authorities and voluntary adoption agencies on this matter and the rest of the adoption reform programme. Training to support ethnicity issues will be part of the 2014-15 sessions and places at these sessions are free. Of course, good matching is important for all children and all adoptive families need access to adoption support at different stages of childhood. We are addressing these issues for all adoptive families and the guidance will reflect that. We will also add other issues that may arise in our discussions with the NSPCC and other experts. During the consultation I will put a copy of the consultation document in the House Library and send a copy to former members of the Select Committee. I hope that many of you will respond. To make that as easy as possible we would be delighted to host a round-table discussion with Peers about the guidance.

However, improving outcomes for black children is not only about adoption. For many, fostering will be more appropriate: three-quarters of all looked-after children are in foster care. For others, it will be special guardianship with a relative or former foster carer. Where adoption is the right outcome for black children, we must do better to find them families as quickly as we do for other children. For those children for whom adoption is the right permanent outcome we need action on several fronts. This includes recruiting more adopters generally, including from minority ethnic communities. This year we have given £150 million to local authorities through the adoption reform grant to help boost adopter recruitment and £16 million for the voluntary adoption agencies to help recruit more adopters who can meet the needs of children needing adoption. For example, Southwark has come up with innovative ways of recruiting adopters from the black community.

There will be better training for professionals. We have appointed BAAF to provide training on a range of issues, which next year will include ethnicity. Places are free for all local authority and voluntary adoption agencies. There will be better adoption support. We know how important this is, not only when the child is first placed with the family, but also later on, perhaps when they are dealing with the trials of adolescence and maybe, as my noble friend Lady Benjamin alluded to in one particularly moving case, questioning their identity. In September 2013 we announced a new fund with a contribution of nearly £20 million to help adoptive parents access the best possible support to meet their children’s needs. This fund will be rolled out nationally from 2015 but will be trialled from next year. The investment will make a difference to adopters in providing the support they need and better guidance, and I have explained the steps we are taking here.

As the noble Baroness, Lady Morris, said so incisively, we have, I believe, complete consensus right up to, and including, the point of diagnosing the problem. The issue is precisely how we change a culture of behaviour, but we have no intention of moving away from the importance of the child’s cultural and ethnic background. It is imperative that these are taken into account on every front.

I hope that we do not vote on this matter. That would be unfortunate given the nature of the matter that we are dealing with. I am personally committed to spending as much time as possible with my officials, the NSPCC, noble Lords and other interested parties to ensure that we get appropriate guidance in place to enable this matter to be handled in a way that takes into account the best interests of the children so that, on the one hand, their ethnicity is fully taken into account in all placing and matching decisions and, on the other, they are not left on the shelf and short-changed by the system, as many are now.

I hope noble Lords will agree that we are all very much in the same place and that statutory guidance gives us the scope to steer social work practice in a more nuanced way than through blunt statements in the Bill. On that basis, I hope the noble and learned Baroness will withdraw the amendment.

I now turn to the amendment in the names of my noble friends Lady Hamwee and Lady Walmsley. I am grateful to my noble friends for their innovative thinking on this matter, proposing to remove references to age and sex from Section 1(4)(d) of the relevant Act. I understand the thinking behind the amendment, which I believe is designed to remove from legislation any of the specific characteristics about a child, and rely wholly on the phrase,

“the child’s background and any of the child’s characteristics which the court or agency considers relevant”.

After careful reflection, I do not propose to follow this line of thinking at present. This is because there is no evidence that there is an issue with the way that the courts or adoption agencies are interpreting the words “age and sex”. There is a fairly technical issue at play here. Clause 2 seeks to remove subsection (5) of Section 1 of the 2002 Act. This is a requirement which applies only to adoption agencies—that is, local authorities and voluntary adoption agencies—when placing a child for adoption. Subsection (4) of Section 1—what is known as “the welfare checklist”—applies to the court as well as to adoption agencies, so seeking to amend this suggests a change for the courts as well as for adoption agencies.

In addition, this provision in the welfare checklist reflects an identical requirement on the courts in Section 1 of the Children Act 1989 when considering orders under that Act. Therefore, if we were to change the wording in the Adoption and Children Act 2002 in the way suggested by removing the reference to age and sex, that would send a strange signal to the court as it would suggest a different decision-making process under the Adoption and Children Act 2002 from that under the Children Act 1989.

However, in the end I come back to the very serious issue we want to address: the delay that black children and other ethnic minority children experience while waiting for adoption. As I said at the beginning, we have today paid tribute to one of the greatest advocates of racial equality ever. I listen frequently to the wonderful speech given by the other great advocate, Martin Luther King, which in my view is the greatest speech ever made. It is not the “I Have a Dream” speech, which everyone thinks of, but the one he made two months before that at Cobo Hall in Detroit in June 1963, which was then the centre of popular music, in which he used that wonderful musical analogy that all God’s children, from base black to treble white, are equally important in God’s world and on God’s keyboard. However, that does not seem to be the result in terms of the outcomes for black children in our adoption system, and this Government are determined to change that.

It is the requirement on local authorities and other adoption agencies at Section 1(5) in the Adoption and Children Act which—albeit it was placed there with the best of motives—I believe has contributed to the delays that black children face, as I think all noble Lords have acknowledged. The statutory guidance gives us the opportunity to provide much more nuanced advice and guidelines which will benefit all children being adopted, not just those who are visibly different from prospective families. For this reason, I urge the noble and learned Baroness to withdraw the amendment.

[Baroness Butler-Sloss]

My Lords, I thank all those who have spoken on what in my view is an important issue, although it may be, as several have said, a question of balance and degree. I will start by answering some of the Minister’s points. As a former judge who tried adoption cases, I am well aware of the unacceptable delays that there have been in adoptions of non-white children and children from other cultural backgrounds. I believe that Section 1(5), requiring social workers and the courts to pay particular regard to ethnicity, was wrong and I am happy that the Government wish to remove Section 1(5) from the Adoption and Children Act 2002. However, I do not believe that putting these words into the checklist would have the effect that the Minister says.

The Government are putting forward a number of extremely sensible suggestions, many of them coming from the important reports that have been published. I hope that these will lead to far better adoption situations, and for all children who should be adopted to be adopted more quickly. Therefore, I very much appreciate the work the Government are doing. It is interesting that agencies remain unconvinced by the Government’s arguments, although they are, like the NSPCC, willing to work with Government to improve the statutory guidance if this amendment does not go through. I very much support any sort of enhanced guidance and training, but I am afraid that this is not enough.

I was probably wrong in my opening remarks to your Lordships in concentrating on ethnicity, because the words that I proposed should go into the checklist are four factors:

“religious persuasion, racial origin and cultural and linguistic background”.

They are all equally important and I was at fault for concentrating on ethnicity. It was a shorthand version and probably misleading.

I take the point made by the noble Lord, Lord Storey, about statutory guidance being good enough, but I ask him: if statutory guidance is good enough, why do we have the checklist? Surely the checklist could equally well go into statutory guidance. The checklist in Section 1(4) of the Adoption and Children Act has six paragraphs, (a) to (e), and three sub-paragraphs, (i) to (iii), and it is thought necessary to include them in the checklist, not just in statutory guidance. So why are the other factors in the 2002 Act so much more important than these four points that I have just set out, which I propose should be slipped neatly in with the rest of the checklist?

It has been suggested by the noble Baroness, Lady Eaton, that the words “have regard” might be seen as prescriptive, but sitting as I did as a judge, to “have regard” to something is not in the least prescriptive. One can have regard to it and then disregard it. One does not have to keep on regarding it. I certainly had no problem in the Children Act and the Adoption Act in having regard to something, then discarding it. There is nothing at all prescriptive about “having regard”. However, a checklist is a reminder to social workers and judges that they must not ignore it. To take it out altogether, which the adoption agencies are concerned about, is to swing that pendulum too far the other way, because it is not then anywhere.

It is suggested that the words “background” and “characteristics” are clear, as the noble Baroness, Lady Perry, said, and one does not need anything else. If I may respectfully disagree with her, I actually think that you do. You need a bit of a jolt. What do “background” and “characteristics” mean? They have to include certain points that I am not certain every social worker, however senior, might necessarily have in mind unless they were there. I say again that statutory guidance is not quite as good as having a checklist in primary legislation. The pendulum should be in the middle, and the middle means putting it in somewhere, but not making it too important. That is what I would like to see with this amendment, and I would like to test the opinion of the House.

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[Baroness Butler-Sloss]

My Lords, I have also put my name to Amendment 4. I am not too worried which of the various amendments finds favour with the Government, but I want the Government to look at where we stand at the moment. I do not want to repeat what either of the noble Baronesses has already said, but my concern is a general one. If a future Government became overenthusiastic, under the existing clauses there is a possibility of wholesale interference with various local authorities, either all together or singly by picking up on them one after another.

I am aware of this issue from the newspapers, but I used to be aware of it when I had local authorities appearing before me—my heart would sink when I saw the name of a particular local authority, because I knew that the way that it would behave in relation to the particular child coming before me was not up to standard. Indeed, I would use a phrase that has been used with regard to some government departments in the past that it was “not fit for purpose”. That, we know, is true of some local authorities even today, and that is very sad.

However, the issue needs to be dealt with in a less than heavy-handed way. There needs to be a degree of delicacy in how one deals with this. I would like the Government to reflect on the best way to bring forward to this House how we can ensure that any overenthusiasm of future Governments might be tempered by the requirement to show Parliament that what they want to do is appropriate, necessary and proportionate.

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There are other amendments in this group—Amendment 7, which was very ably introduced by the noble Earl, Lord Listowel, and Amendment 10, will be introduced by the noble Baroness, Lady Young. Those amendments were debated in Committee and received considerable support. Both the noble Earl and the noble Baroness made very coherent cases and I am sure that we will have a good debate on those amendments again. I hope that noble Lords will continue to support them.

[Baroness Butler-Sloss (CB)]

I hope it is convenient to follow the noble Baroness now on the sibling point so that these points are kept together. My name is on Amendment 9.

As I said in Grand Committee—there are people in the Chamber who may not have heard this so forgive me for saying it again—children came to talk to us in the Select Committee on Adoption Legislation. These children had been adopted or looked after, who were or had been in care. Perhaps the most important issue they raised with me and with another noble Lord on the Select Committee was their relationship with their brothers and sisters. They made absolutely clear the importance of those with whom they had already shared a family life. One girl, who was aged about 15 or 16, said, “I don’t expect to see the children born to my parents after I left home, but I really do need to stay in touch with those I knew”. Another boy, aged about 10 or 11, said, “I looked after my younger brother and sister. I am so worried about what is happening to them; nobody will tell me. I wake up each night and think: are they all right? Why can’t I find out what is happening and why can’t I see them?”. That was an adopted child who was extremely happy in his adoption placement but who remained extremely worried about the children who remained at home.

So this is a really important point, and as the noble Baroness, Lady Jones, said, if it is in primary legislation, it will have that added bit of importance. Social workers do not always recognise this, and neither do adopters. It is very important that the message is put forward: it is not that children should see their former natural parents, which may be totally inappropriate; but in certain cases there will be children who should see those they have had to leave behind. It is that group of children for whom the amendment has been tabled. It is a very important point, particularly where the child has been adopted. The new adoptive parents may well not appreciate the importance unless it is up front. They are not going to read social work practice—that is the last thing in the world they are going to read. They may not want any relationship. However, for both the social workers and the adoptive parents, this is an important factor in the welfare of the child about whom we are talking. It really matters.

[Baroness Young of Hornsey]

My Lords, in speaking to Amendment 10, I, like other noble Lords this afternoon, place on record how grateful I am for the help of the Minister and his officials in trying to get to grips with this issue of access to records for care leavers, especially as it was not originally part of the Bill. I understand why we needed some considered negotiations around the subject. I found those very useful, as did my colleagues from the access to records campaign group, which comprises professionals from the Care Leavers’ Association, the British Association for Adoption and Fostering, the Association of Child Abuse Lawyers, the Child Care History Network, the Post Care Forum and Barnardo’s. It is also supported by the fostering and adoption charity, TACT.

Some of the key issues that this amendment seeks to address are the lack of consistency across the country’s local authorities in the way they deal with giving access to records to care leavers, and also, importantly, how they deal with the issue of redaction of those records. A number of care leavers gave us evidence of how they received notes from their past which were essentially incomprehensible because of the amount of redaction that had taken place. Again, that seems to depend on whereabouts you live in the country. That should obviously not be the case. In the amendment, we call for clear, effective statutory guidance and the opportunity for care leavers to access support once they have accessed their records.

That is another important point. I am not sure that all noble Lords are aware how difficult that experience can sometimes be for people. It does not matter what age you are. This is not just for young people who have recently left care. Many older people also have that experience. At the moment, no kind of support is necessarily offered to them. Of course, care records must be properly maintained and every effort made to trace records from decades ago as well as more recent ones. That ties in to my earlier point about the ages of people seeking their records. In fact, colleagues at the Care Leavers’ Association say that the average age of those seeking its help in looking for their records is around 35 and goes up to a 90 year-old—who found her records, triumphantly. Whatever age you are when you eventually get your records, if you are fortunate enough to do so, the experience can be difficult.

During meetings with officials, it emerged that both the Minister—the noble Lord, Lord Nash—and the Minister for Children and Families agreed that the current wording on access to records in the care planning statutory guidance could be strengthened. Colleagues from the access to records campaign and I have worked with officials on that particular subject. It is also my understanding that Ministers have agreed to work with us on a programme to ensure that front-line managers and staff are aware of the new guidance. Again, that was raised earlier this afternoon in relation to how statutory guidance is used and the extent to which people take it seriously. We need to ensure that they do—once we have, as I hope, developed some new guidance in this area.

That activity will include supporting a round table for local authorities and voluntary sector organisations, and sending messages via the department’s various communication routes to relevant bodies which can raise that issue with their local authorities and make sure it is firmly on the agenda. We also understand that officials have spoken to the National Care Advisory Service, which runs the National Leaving Care Benchmarking Forum for managers. It said that it would be happy to run a session where the managers talk about how to improve their local practice, based on the proposed revised guidance and best practice. Could the Minister confirm my understanding of that? Also, would he be prepared to ensure that the voice of older adult care leavers is heard during all consultation processes and that an assessment of the effectiveness of strengthened statutory guidelines is carried out?

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[The Deputy Speaker (Lord Haskel) (Lab)]

There is an error on the paper. The government amendment is number 11 and the amendment of the noble and learned Baroness, Lady Butler-Sloss, is number 12. The two are grouped together, so the noble and learned Baroness, Lady Butler-Sloss, may speak to her amendment.

[Baroness Butler-Sloss]

My Lords, I was completely confused. There was a moment when I thought I was getting out of control because I know this is not so far a government amendment.

I start by expressing my own gratitude to the Government for the way they have approached care leaders, from the Secretary of State downwards to the Ministers standing over there and sitting here. We on our side are enormously grateful for the fact that the plight of care leavers has been recognised and, I cannot resist adding, the particular plight of the trafficked children who at the age of 18 were possibly going to be in a very parlous state.

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In conclusion, I note that in the 18 months since we first considered this issue, the Joint Committee on Human Rights, the Group of Experts on the Council of Europe convention against human trafficking and the US State Department Trafficking in Persons Report have all recommended we introduce a system of child trafficking guardians. We must not miss this opportunity. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, my name is also on this amendment. This is a goal which the noble Lord, Lord McColl of Dulwich, and I have pursued for not far short of two years. If I may put it rather bluntly, we were fobbed off last time. The fobbing off produced the report to which the noble Lord referred, which only underlines the importance of bringing this amendment back in a slightly different form, as he said. In speaking to it, I declare an interest as the co-chairman of the human trafficking parliamentary group and a trustee of the Human Trafficking Foundation. I am also very much involved with Frank Field MP and John Randall MP in an inquiry into modern slavery with a view to advising government on the proposed modern slavery Bill. However, this amendment is appropriately tabled to the Children and Families Bill as it deals with children. We are talking about children and young people under the age of 18.

The Government have produced excellent guidance on unaccompanied trafficked children and other vulnerable children and, as far as it goes, I have nothing but praise for it. However, it does not begin to meet the amendment that the noble Lord and I are putting forward. The excellent guidance presupposes that social workers and independent reviewing officers will be able to give a trafficked child what is needed to help that child from the moment of identification of the child having been a slave until the moment that that young person’s future is determined. How on earth is a social worker with a child accommodated under Section 20 of the Children Act—not even with parental responsibility—to do more than treat him or her as a looked-after child among many other looked-after children?

Trafficked children go missing and are retrafficked. Some local authorities do not even know that a missing trafficked child has been identified as having been trafficked. Therefore, they do not alert the police to the fact that this is a particularly vulnerable child who might be picked up if immediate action is taken to try to find that child. All too often these children are treated like any other missing children, many of whom run in and out of care and are technically missing but may return after 24 hours. That is a totally different group of children.

The statutory guidance does not provide what is needed, which is continuity, regularity, responsibility and a trusting relationship from the moment the child is identified to the moment his or her journey to whatever solution is arrived at is met. We have to bear in mind that this will generally be a foreign child, as the noble Lord, Lord McColl of Dulwich, said—I do not apologise for saying it again—because English children who are slaves are dealt with differently. The foreign child will probably speak no English and will have been brought into this country and enslaved in a wide variety of ways such as labour exploitation, prostitution or domestic servitude. Whichever method is used, the child is identified and is then known to be a victim. The child will not necessarily speak English and will not have papers. It will be difficult to work out exactly how old the child is and whether he or she is 15 or 18. Different arrangements apply according to the child’s age. The child will almost certainly be traumatised and, as the noble Lord, Lord McColl, said, frightened. He or she will have been told that they must not talk to the police, social services or to anybody else because they will put the child back on a plane or a boat and send them back to the place where people—very often the parents, as the noble Lord, Lord McColl, pointed out—have sold that child into slavery because they need the money. That is not just the case with Vietnamese children; it is across the world.

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[Baroness Northover]

My Lords, this debate has made very clear the commitment across the House to improving the support received by trafficked children. My noble friend Lord McColl has made a very powerful case once again. We recognise that not enough has been done and that we must do more. I pay tribute to my noble friend Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and others for their determination to ensure that trafficked children, who are so very vulnerable, are properly protected. Noble Lords have made their concern extremely clear. We agree that these children are indeed among the most vulnerable and it is clear from what noble Lords and others have said that they are not being supported as they should be, so how is this best achieved?

We remain concerned that the introduction of guardians for trafficked children, alongside those persons who should already be working in the interests of the child, is not the most effective way to tackle the local problems that are clearly manifest here. Where local systems are not working as they should be to support the best interests of trafficked children, we need to address the causes of those problems. Others with extensive experience of the needs of trafficked children agree. Children and Families Across Borders, an organisation with considerable expertise in this area, has told us that introducing guardians would not improve the inadequate service that some trafficked children receive. Instead, they believe that a clear commitment to, and strong focus on, professional development by local government employers and others is required. This would help to improve practice and ensure that social workers understand the particular needs faced by trafficked children in their care. It is not clear that appointing another individual to speak for a looked-after child or to help them navigate the care system is the answer. Central to the role of a social worker is ensuring that the child’s best interests are protected. If that is not happening then that failure should be addressed. Introducing guardians could actually result in making things worse, with other professionals thinking they do not need to concern themselves as much about a trafficked child because their guardian is looking after them.

I note that my noble friend Lord McColl mentioned the variability of support and the best practice that can be seen among some social workers. He pointed to other cases of very poor practice and we fully agree that these must be tackled. We recognise that local authority performance with regard to trafficked children is clearly inconsistent. To address this inconsistency, we have proposed new regulations so that, when a trafficked child comes into the care system, the crucial information that they have been trafficked must be recorded on care plans. Under these new regulations, local authorities would be required, in planning and reviewing care for a trafficked child, to consider the specific and complex needs that may result from the experience of having been trafficked. This requirement would also extend to pathway planning for a trafficked child when they cease to be looked after. Social workers should support trafficked children to access mainstream and specialist services and this should include accompanying them to meetings with other professionals, as my noble friend Lord McColl highlighted. We will make this clear in the proposed new statutory guidance. To underpin the proposed new regulations regarding trafficked children, we have, as I say, drafted new statutory guidance. This sets out our expectations of how local authorities should go about providing the required support and we would welcome noble Lords’ views on how to make this draft guidance stronger. As noble Lords will be well aware, statutory guidance is of course not merely advice that local authorities can choose to ignore as they please. They must comply with statutory guidance unless there are exceptional reasons that justify a departure.

When they first enter care, trafficked children are particularly vulnerable, as noble Lords have made clear. They might not initially recognise that they are victims of a crime, or might believe that their best interests lie with their traffickers. The first hours and days are crucial in protecting a trafficked child from going missing. The new statutory guidance describes some of the steps that local authorities should take to protect against this risk, such as temporarily removing their phones to ensure that they are not in contact with those who can do them harm, providing 24-hour supervision, or employing previously trafficked children to assure the victim that they are safest in local authority care. The guidance provides a clear definition of a trafficked child and describes steps that should be taken when a child is identified as having been trafficked. This vital role is one that local authorities, with partners including the Home Office and police, fulfil—or should fulfil—as part of their child protection duties.

The noble and learned Baroness, Lady Butler-Sloss, talked about missing children. Some of the things that I have just said are intended to try to stop those children going missing. However, we have also put specific advice in our revised guidance on trafficked children, including how to prevent them going missing and how to support them when they are found.

Children who have been trafficked into this country from overseas may require specialist support in dealing with immigration questions or proceedings, as noble Lords have made plain. The amendment says that guardians will assist the child to access legal representation, appointing and instructing a solicitor where necessary, and my noble friend Lady Hamwee picked up the issue of legal representation. However, independent reviewing officers should already ensure that any child in their care has access to the appropriate legal support. In our new statutory guidance, we will now go further and require that such support should be provided by a suitably qualified solicitor or immigration adviser. Any immigration advice or legal support would be in addition to the child’s right, as a looked-after child, to independent advocacy.

Part of making children feel safe when they have been trafficked from overseas is ensuring that they understand their situation and the support provided to them. Our new statutory guidance will require that, where interpreters are required, they should be trained to understand the particular risks faced by trafficked children. Helping children to overcome cultural or language barriers so that they can express their wishes and feelings is a role that is already carried out by independent advocates. The new statutory guidance notes the importance of commissioning specialist advocacy services to provide this support.

The noble Baroness, Lady Lister, brought up the discussion that we had in Committee about Scotland. I was very interested in the fact that Scotland has guardians, and that is why I asked how it had worked out. She probably knows that the Scottish guardianship system is much smaller than would be required in England because it covers just 80 unaccompanied asylum-seeking children. Scottish guardians essentially fulfil the role played by independent advocates in the English system but with specialist immigration skills. Our proposed statutory guidance requires that, where a trafficked child requires specialist immigration advice, it should, as I said, be provided by a solicitor or adviser with the relevant competences.

I thank the JCHR for its letter, to which I shall be responding, and for its engagement in this matter. It highlighted several aspects of the Scottish model for consideration in England, as the noble Baroness noted, including provision of support in relation to the asylum and immigration process, support services and future planning, helping children to develop wider social networks, and ensuring that children’s views are heard in all proceedings that affect them. These are, indeed, very important, and that is why each of them is addressed in our new guidance. It is also why, where local practice is good, those aspects are already provided through the existing care system without recourse to the additional role of guardian for trafficked children. Of course, we take very seriously the letter that the JCHR has written and, as I said, I shall be writing in response.

There was quite an emphasis in Committee and, to some extent, in the discussions this evening on stability of care. We agree that these children need stability and continuity. The new statutory guidance would require local authorities to prioritise trafficked children so as to provide the greatest likelihood of their building a sustained relationship with their social worker. These are the most vulnerable children and they are precisely those for whom social workers must do most in providing understanding and support.

I have described here only a portion of our proposed new guidance, which covers a range of issues to ensure that trafficked children receive the right care and support. We would welcome suggestions from noble Lords on whether the guidance should include other issues. It is hugely important that we get the support for these children right, and we very much look forward to continuing discussions with noble Lords about how best to do that. We recently sent both the draft regulations and the guidance to noble Lords and they are available on our website. In particular, we would like to discuss with my noble friend Lord McColl, and with any other noble Lord who might wish to join in, the opportunities offered by the regulations. I am delighted that we have in the diary a meeting with my noble friend Lord McColl later this week. Our discussions are clearly very important for this group of children.

When officials shared the drafts of the guidance with representatives of the Children’s Society, the Refugee Council, and Children and Families Across Borders, they all found much to welcome in the guidance. I hope that noble Lords will find the same when they read the drafts and that they provide a sound basis for further discussion when we meet shortly. I therefore hope that my noble friend will be willing to withdraw his amendment.

[Baroness Butler-Sloss]

I wonder if I could ask the noble Baroness what she meant by regulations. She has been talking about statutory guidance, but she also said regulations. Does she mean statutory instruments?

[Baroness Northover]

From authorities far higher than me, the answer seems to be yes—regulations.