Child Exploitation in Oxfordshire
Baroness Butler-Sloss Excerpts(9 years, 8 months ago)
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Baroness Butler-Sloss (CB)
My Lords, will the Minister pick up two points made by the noble Baroness, Lady Howarth, about vacancies among social workers and resources? Vacancies and a lack of resources are major problems for social workers dealing with child sexual exploitation.
Children and Families Bill
Baroness Butler-Sloss Excerpts(10 years, 9 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am delighted to be opening the Third Reading of the Children and Families Bill. As the House will appreciate, I have joined the Bill at a late stage but I recognise how much detailed debate and scrutiny there has been in this House over many months. I hope noble Lords will agree that, working together, we have been able to make improvements to a Bill that will have a positive impact for children and young people and their families. There are some further issues where we have been persuaded that legislative changes are appropriate, and others where consequential amendments are required, so the Government tabled amendments on these areas last week. I hope that all of the amendments will be welcome, and that we will make good progress today.
Returning to the amendment, I begin by thanking my noble friend, the noble and learned Baroness, Lady Butler-Sloss, for her contributions and for bringing her experience to the debate on the amendments to Clause 11 and the issue of parental involvement. The clause has been the subject of much debate throughout the passage of the Bill and I am pleased that there has been widespread approval of the intentions behind it. Noble Lords agree that, in most cases, it is best for children to have both parents involved in their lives, but I also understand the concerns of those who have highlighted the need for a clearer understanding of the policy.
We have listened to the concerns raised by noble Lords and I repeat my thanks to the noble and learned Baroness, Lady Butler-Sloss, for her important contributions throughout the consideration of Clause 11. Our aim in tabling this amendment is to retain the principle behind her amendment agreed on Report while ensuring that it will work in practice as noble Lords intend. We have removed the phrase,
“promotes the welfare of the child”,
as it is clear that any involvement that promotes a child’s welfare will serve to further the child’s welfare, which is already captured in the main body of the clause. Retention of this phrase in the amendment would result in repetition of the wording of new subsection (2A) and might, we feel, lead to confusion. The remaining changes to the wording seek to tidy up the drafting while retaining the principle of the original amendment.
Noble Lords have highlighted a need for the clause to be clearly communicated to separating parents. We agree. I want to reassure noble Lords that we are taking steps to address any potential misunderstanding of the clause by parents, in particular through content that is being developed for the Sorting out Separation web app. When Clause 11 becomes law, we will make clear in the information on this web app—and in information about the changes that we disseminate to partner organisations—that the clause does not give parents a right to a particular amount of the child’s time. We will also ensure that the organisations with the HSSF—the Help and Support for Separated Families—kitemark have clear and accurate information about the changes. We recognise the huge expertise and experience of organisations whose work is focused on supporting vulnerable parents. Their input will help to ensure that the messaging and tone of the information that we develop is right, and that the information is properly targeted.
I hope that noble Lords will agree that this amendment meets the concerns that have been raised previously by the House. I again thank the noble and learned Baroness for bringing this important matter to the House’s attention. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I am delighted to put my name to this amendment and I thank the Minister for what he has said, particularly his extremely helpful explanation. I should like, through him, to thank those behind him from the Bill team and the civil servants who were extremely helpful in our discussions. They were very helpful to me and, through me, to this amendment.
I was concerned to have an amendment in these words and I am happy to accept the revision that the Government have made. I am well aware that any amendment that is not a government amendment has to be rewritten; that seems to be a given part of parliamentary life. I am totally happy with that. One of my reasons was that in the absence of legal aid in private family cases, there was a very real danger that the dominant parent would overpersuade the less dominant parent that there was a right to equal sharing of the child’s time after separation. Unfortunately, the Government began by calling this particular clause “Shared parenting”. I am grateful to them for having realised their mistake so quickly and taking it away, but the press picked it up. Consequently, people out there believe that this clause means shared parenting.
I had very useful discussions with an organisation, Families Need Fathers, and I ask the Minister to see that any information that is sent out to various organisations also goes to that one because it has an utterly sensible approach. It is very keen that the non-resident parent should have a proper connection with the child to further the child’s welfare, but recognises that it is not shared parenting. It is an extremely useful organisation and I commend it.
I want to be sure that when the information, assessment and mediation meetings take place, that is also when an explanation of what is meant by the relationship between the child and the non-resident parent is made extremely clear. Having said that, I am happy to support this amendment.
Children and Families Bill
Baroness Butler-Sloss Excerpts(10 years, 10 months ago)
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Baroness Butler-Sloss (CB)
My Lords, I had not intended to speak, but I have been listening to this argument with considerable interest from the outside. The present system of appeals, and the other ways in which social care and health are dealt with, does not seem sensible and something ought to be done about it. I have to say that my heart goes with Amendment 40A and my head with Amendment 40B. I can see from what has already been said that there are some formidable obstacles to achieving the desirable end—but it is a desirable end, and it really is time, in an admirable Bill such as this, to tackle some of the more difficult themes.
I see that the noble Lord, Lord Storey, may be too optimistic, and that it would be sensible to have some spur to encourage the Government to get somewhere rather than going away and saying, “Yes, in principle we think that this is a good idea but it is extremely difficult. We have problems with the Department of Health and social services and we are not sure, with everything else that we have to do, that we can achieve it”. The advantage of Amendment 40B is that it would be a spur to getting something done. I put in a plea: the present system is not sensible and something ought to be done, and put not into the long grass but into the short grass.
Baroness Howe of Idlicote (CB)
My Lords, rather like my noble friend who has just spoken, from listening to the arguments, I feel it is clear that something pretty sharp has to happen. I am assuming that one can have both the amendments. If we can, I am in favour of both of them.
Children and Families Bill
Baroness Butler-Sloss Excerpts(10 years, 11 months ago)
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Baroness Butler-Sloss
“(2B) Involvement is any kind of direct or indirect involvement that promotes the welfare of the child; it shall not be taken to mean any particular division of a child’s time.”
Baroness Butler-Sloss (CB)
My Lords, it is with some regret that I have not sought to remove the presumption from the wording of Clause 11, although I still think it is unfortunate. I recognise the good intentions of the Government and their genuine desire to involve both parents, and more often the father, in a continuing relationship with the children after the separation of the parents. I entirely support that important aspiration. A serious part of the parting of parents is the failure of one parent, often the father, to have any future relationship with his children, who are then brought up in a one-parent family without the advantages of knowledge of and support by the absent parent.
I am, however, concerned about the message that separating parents may receive from the current wording of Clause 11. Originally the heading for this clause was “Shared parenting”. That heading, thank goodness, was removed, but it had been picked up by the press, and this clause may be seen by some as containing the right to equal access to children. There is concern, not just on my part but on that of many of the agencies, including the NSPCC, Barnardo’s and Coram.
The department has issued excellent guidance for those who choose to read it. I have no concern about the courts, judges and magistrates doing their best with litigants in person, in the absence of legal aid, to come to the least detrimental decision about the arrangements for the children. Most parents will be sensible about arrangements. However, there is a small percentage of parents—sometimes one parent, male or female, and sometimes both parents—who are utterly unreasonable, and no arrangements will be easy to achieve; sometimes it will be impossible to achieve any arrangements.
The groups of parents whom I worry about in relation to Clause 11 are those who try to settle the arrangements for the children without going to court. In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children. We know from the Norgrove report of the fine line between children at risk in the private law sector and those seriously at risk in public law. The parents of some of those children at risk may well make their decisions outside court. I want the weaker parent to have something in statute to hold on to if browbeaten.
I also worry about those who would go to court with an erroneous view of what this clause actually means, and with an inbuilt sense of their rights rather than the best arrangements for the children. The purpose of this amendment is to give some clarity to the clause and to help the public come to terms with putting the welfare of their children first. I beg to move.
Lord McNally
I hope that the noble Baroness takes what she has said to heart; what I am trying to avoid is replacing one perception with another. There is equal danger that, after a debate such as this, another perception gets flagged. What I want is to emphasise what is in the legislation and what is intended by the legislation and to use all the means at our disposal to make sure that that is fully understood by all the agencies involved and the widest range of public opinion as possible. As my noble friend has indicated, that also means that there is a certain sense of responsibility on the part of the media in reporting the intentions of Parliament.
When a case is before the court, neither parent has a right to any specific level of contact, direct or otherwise. The court must consider the child’s welfare above all else and make its decision on that basis, weighing up the evidence before it. That will continue to be the case, and nothing in Clause 11 changes that. The wording of the clause is deliberately neutral; it does not seek to pre-empt court decisions and, as now, it gives courts the flexibility to determine the arrangements that they believe are best for the child, taking account of all the evidence before them. We think that that is the right approach.
However, I agree wholeheartedly with those who have highlighted the need for a clear understanding of the policy. The reality is that any provision which impacts on parents and their private family relationships is extremely sensitive. Even the wording of the amendment could be misinterpreted in the media and give rise to unintended consequences. There is no guarantee that it would not. For example, as I said, a parent who already has very limited contact through no fault of their own may interpret the wording as endorsing that position. Our priority must be to draft legislation which achieves our intended effect and to take other steps to communicate to society more widely what that effect is. As I said, it is unlikely that separating couples will look to the Children Act 1989 to try to predict the outcome of their dispute. They will look for information online or talk to their friends and family, to organisations which they trust or their legal advisers.
The Government’s “Sorting out Separation” web app will be the first port of call for many parents looking for information about any aspect of separation and it will then signpost them to further sources of help. The app itself will set out clear information for parents about the law, and this information will make it plain that the change is not intended to be about the division of the child’s time. We will also ensure that organisations with the Help and Support for Separated Families kitemark have clear and accurate information about the changes. The web app will be embedded on the sites of organisations that have this kitemark, including, for example, Relate. This means that people accessing these websites will be able to click on a link and access information on the web app. In addition, the minority of separating parents who turn to the courts will need, first, to have attended a MIAM, and they will be encouraged to find a different way of resolving their dispute. Parents will be given information through all these routes and through other services that they may engage with.
The way to ensure an accurate understanding of the policy is for the Government to work with organisations in the sector to develop clear information which can be disseminated through these routes, not to reword the clause in an attempt to prevent inaccurate reporting of what we want to achieve. Officials have already begun discussions about the information to be developed and these will continue. We want to work with relevant voluntary organisations so that we are confident that we can address the concerns.
Right from the beginning I have never been in any doubt about the intentions of the various—in this case—noble Baronesses who have contributed to this debate. However, it is a matter of judgment, and I am asking for the House’s support this afternoon for the Government’s position. I have thought long and hard about how we can address the problems of misperception and misrepresentation, and I honestly believe that the solution put forward by the noble and learned Baroness, Lady Butler-Sloss, may lead us into the same problems but via a different route. We have tried very hard to get the balance right and, even at this late stage, I ask her to withdraw her amendment.
Baroness Butler-Sloss
I thank all noble Baronesses for their contributions and I hope that the Minister will forgive me for not thanking him. I am particularly grateful to my noble friend Lady Howarth, who has put right the perception that in some way the courts are unfair to fathers. It is a perception which has, from the beginning, been inaccurate. When I was President of the Family Division, I went round the courts and made a lot of inquiries. After I had retired, I was very grateful for the CAFCASS report, which absolutely clarified what I had understood to be the case from judges right across the country—that they try cases fairly and that there is no prejudice against fathers.
I find it difficult to understand why the Minister thinks that what I think is a very modest amendment for clarification is going to be widely misinterpreted and somehow bring back the situation before Clause 11 was put forward. I take issue with him on one point. He talks about going to legal advisers. How many people in this country have the money to go to legal advisers if they do not have legal aid? It is this Government who have taken legal aid away from private law cases. When he talks about going to legal advisers, it will be a very small minority of that very small minority who actually fight cases who will get to lawyers at all. They may or may not go on the web and they may or may not read what I consider to be the excellent advice that the Government give. They will look at what the press has said and, despite the wonderfully impassioned suggestion of the noble Baroness, Lady Walmsley, may or may not choose to take any interest in this particular debate, and may perpetuate a very dangerous perception.
I must say that I worry about ordinary people on the ground who cannot get on and decide to separate. I sometimes used to say to warring parents, “You are the last people who should be making decisions about your own children because you cannot think straight about what is happening next”. Those are people—without legal advice, lawyers in court or probably ever going to court—where one of them will be dominating the other and the arrangements for the children will be unsatisfactory and, in some cases, positively dangerous. All I am asking for is some clarification, particularly for a mother because there may well be a more dominant father, although there can be a dominant mother. I have certainly seen dominant mothers and not only in the American press. It is possible that the mother or father who is not the dominant parent will look at the law and see that there is an explanation of what is in Clause 11 with this amendment.
I am truly sad that the Minister thinks that that will create some misinterpretation. Speaking for myself, I cannot see it and I rather hope that noble Lords will not see it either. I would like to test the opinion of the House.
Baroness Butler-Sloss
My Lords, I declare an interest as a trustee of the Marriage Foundation. I express my admiration for the tenacity of the noble Lord, Lord Northbourne, in pursuing this difficult, worrying and extremely important issue. Parenting must be a matter of responsibility rather than rights; that point needs to be put forward again and again in every single place where it can possibly be put. The admirable proposals that the noble Lord, Lord Northbourne, put in Amendment 15 ought to be placed somewhere by the Government. Whether they should be in primary legislation, I am not convinced, but certainly they should be in guidance and, possibly, in part of the pack given to parents when they separate so that they can recognise their responsibilities after separation. I should like to see this sort of thing in libraries, as part of the school pack in the sixth form and in sixth form colleges, and in universities and colleges of further education. The duties of parents that the noble Lord, Lord Northbourne, has set out here should be part of what all young and not so young people who are of an age to be parents should have in their minds.
We ought to stop talking about the rights of parents and start talking about the responsibilities referred to in the Children Act, and also about duties. It is interesting that the word “duty” is almost never used, but it is as important today as it was in the 19th century. It is time we started to use it again. I express again my admiration for the noble Lord, Lord Northbourne, and I hope that what he has said will be taken further.
Baroness Tyler of Enfield (LD)
I declare an interest as a vice-president of the charity Relate. I have great sympathy with what the noble Lord, Lord Northbourne, is trying to achieve through this amendment, although I feel that primary legislation is probably not quite the right place to put across this very important message. I agree with the noble and learned Baroness, Lady Butler-Sloss, that it is important to emphasise at every opportunity that this is about parental responsibilities rather than rights. That must flow through all the messaging and communications that we talked about when we discussed the earlier amendment.
I, too, should like to see this guidance offered at many different opportunities. I should like to see this sort of guidance as an integral part of relationship education. We talked about the importance of relationship education in Committee, and I suspect that we shall return to it later. I should also like to see it included in the various pilots for birth registration in different venues. It would be good to see it included there, and in the various packs—Bounty packs and others—that are prepared for new parents. I should like to see it at the new-parent stage, at the education stage and especially in the various advice and guidance packs that are available for separating parents. It has a lot to offer. It is a very important set of messages. I just happen to think that primary legislation is not quite the right place for it.
Baroness Butler-Sloss
My Lords, this amendment raises an issue that has engaged academic legal discussion for about 18 years. I hear with some surprise the fact that some dramatic change was made in the case of Re J. That is not my impression.
There are, of course, two schools of thought, as there are in so many issues, even in family law. During the many years when I was a family judge, I heard many child injury and death cases and agonised over where the line was to be drawn between the protection of a child from significant harm and the importance for the child and the rest of the family of not removing that child from the family home on insufficient evidence. In the case that precipitated this amendment, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, the seven members of the Supreme Court were in fact unanimous on this issue although they disagreed on some less important points, as I would respectfully call them. They decided on the balance of the bare facts of the case that they were against the removal of the children and that the threshold had not been crossed. Put at its simplest, this is a question of whether you remove a child on suspicion or go to the welfare stage on suspicion or whether you have to have evidence before you cross the threshold.
I was never a Supreme Court judge, but I respectfully agreed with the seven—
Lord Elton (Con)
I have one difficulty. I understood that it was not at this stage a question of removing the child—I thought that it was a question only of moving to the welfare stage. The noble and learned Baroness has just said the contrary.
Baroness Butler-Sloss
I am sorry—I was talking about the removal of the child or looking at other aspects of the welfare stage. I am sorry if I conflated that, but the noble Lord is absolutely right. It is a question as to whether the court can make decisions which include the removal of the children or the removal of the parent or putting in place supervision orders or various other intrusive orders into the family.
I suggest that this House should be cautious, when seven judges have said that the threshold has not been reached and crossed, about passing an amendment to the contrary effect. I was going to go through at some length the two cases that I think are relevant, because we go back to 1996—we do not start in 2009—but it is probably unnecessary. However, it was unrealistic for the Supreme Court to be given the one bare fact and not the surrounding circumstances, although it was undoubtedly intentional. In my experience of 26 years sitting as a family judge, 15 of them spent hearing this sort of case—many children who died and many who were seriously injured—as well as eight years spent hearing them on appeal, then going back to hearing them again as a first-instance judge, I do not remember a single case where this bare fact was the only point that the court had to deal with. So I believe that the cases are rare, although I entirely accept what the noble and learned Lord says—that even the rare cases, naturally, have to be protected. But if there is nothing but suspicion, I would suggest to your Lordships’ House, as the Supreme Court judges said, that you should not remove the child on suspicion.
The court has the jurisdiction to look at the entire case, although it is not able to make a decision on welfare in looking at the threshold point. There may have been some degree of confusion in Grand Committee as to what in fact the local authority and the court could do. I hope the House will forgive me if I go through briefly what I understand the situation to be. I would be astonished if it has changed from the days when I was sitting as a judge.
If you have a person, whom I will call P, who has been in a pool of possible perpetrators but not identified as the actual perpetrator of the injury or death of a child, the social workers are not precluded from investigation. I respectfully disagree with my most experienced noble friend Lady Howarth in saying that the social workers might not be able to enter the house or make the proper investigations. With the person, P, having been in a pool of possible perpetrators of the death or injury of a child—in the particular case of J, the child aged, I think, three weeks died of asphyxia but also had terrible injuries—the social services, if they had been alerted that P was in a new family, would see that as a highly relevant factor and naturally very worrying. The local authority has a duty under Section 17 of the Children Act 1989 to safeguard and promote the welfare of children in the area who are in need. It is almost certain that the sole fact available, that P had been in a pool of perpetrators, would trigger immediate action by a local authority.
Under Section 47(1)(b), a local authority in circumstances such as these would have a duty to make inquiries. A social worker would investigate and be likely to visit the family. If the inquiries are frustrated by access to the children being unreasonably refused, there may therefore be grounds for seeking an emergency protection order under Section 44(1)(b) or (a), for possible removal of the children from the home because of what is going wrong if they are not being allowed to see the children.
The local authority could also seek a child assessment order under Section 42(3). In any event, the local authority would be likely to seek an interim care order from a family judge under Section 38(2) in respect of the children. It would not look well to the judge if the parents refused access to the children; that would be a major marker against what was going on in the family. The children might be taken into interim care but, in the case of J, the mother very properly left the home so that the children could continue to live with the father. She moved out.
There would be a directions hearing by the judge of the care application and a CAFCASS guardian would almost certainly be appointed. During the period leading to the substantive care hearing, the family would no doubt be examined in depth. At the main hearing, P would clearly have to give evidence and be cross-examined as to what happened in the first family when the child was injured and died. She—it was a woman in that case—and J would be cross-examined up hill and down dale as to why she had not protected the child, whether she was actually the perpetrator, why she had not seen the injuries to the child, what she was doing while this child was being hurt, and whether she covered up for the other parent. Those are terribly relevant factors and, I would suggest, relevant factors to crossing the threshold if she gave unsatisfactory answers and if she was not believed by the judge. There would be assessment reports from the social worker, and of course the guardian would give his or her own report on the family’s position. All the circumstances would be very carefully considered by the judge in deciding whether the evidence available to him or her was sufficient to cross the threshold barrier.
Clearly, how well the new family were getting on and the care given to the new family by P and by the other partner were relevant to identifying whether there were other concerns that might tip the evidence over the threshold. Only if there were no evidence at all other than the bare fact of P having been in the pool but not having been proved to be the perpetrator would the evidence be insufficient to cross the threshold, and the judge would not make a care order or some other order excluding P from the care of the children. That is the point at which, if you do not cross the threshold, you cannot make a decision about removing the children or putting in a supervision order or any other sort of order.
I am very grateful to my noble and learned friend for giving me the opportunity to read the opinion of John Hayes. Of course, I respect his experience as an advocate in care proceedings but I disagree with his conclusions. Perhaps I may make a number of points on his opinion. He talks about a case of twins where the unharmed twin would be in danger if not removed from the family where the first child had been injured. In that case, the unharmed child would certainly be removed. However, we are considering a new family where one adult member is a possible perpetrator but there is now a new family unit with an adult against whom there are no allegations at all. It may also be relevant that in the J case the injuries perpetrated on the child took place seven or eight years before, and undoubtedly P would have matured. I believe that in that case she was extremely young—16 or 17 years old. She was in a much more stable and supportive environment and therefore might not pose a threat.
Taking the other points made by Mr Hayes, if a local authority becomes aware that a possible perpetrator is in the new family, I have no doubt that it will issue the proceedings even if there are no other concerns, and I am surprised to hear John Hayes say something to the contrary. I do not believe that the judge at the interim care stage would dismiss the proceedings before having the opportunity to see all the reports and examine all the evidence. If counsel for the parents applied at the interim directions stage to have the case dismissed, I would be equally surprised if the judge dismissed the case before the full hearing. I certainly would not have done that because I would have been worried. Of course, you would be worried until all the facts were in front of you. I would hope that the child’s guardian would look at the best interests of the child in the broadest sense and take into account the need for a balance between protection and the right of the child to have a normal life with the natural family. Interestingly, Mr Hayes talks about the balance between protection of the child and the rights of the parents to have a family life. For goodness’ sake, the right of the child to have a family life is much more important than the right of the child’s parents. What we have here is a balance between protection and the right to family life.
It seems to me that there has been an overreaction by academics, some social workers, some lawyers and some judges. The other side of the coin is the real danger that, if this amendment is passed, children may be permanently removed from their parents, their homes, their schools and their friends on a suspicion that the person concerned was in the pool of perpetrators, although he or she cannot be proved to have done the harm. That would be a great injustice to children, it would cause significant harm where there was no serious threat to children’s well-being and it would tilt too far towards intrusion by the state into family life.
Children and Families Bill
Baroness Butler-Sloss Excerpts(10 years, 11 months ago)
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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.
Baroness Butler-Sloss
“( ) 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.
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.
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.
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?
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.
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.
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.
Children and Families Bill
Baroness Butler-Sloss Excerpts(11 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Earl of Listowel
My Lords, the amendment would ensure that all care leavers, including young asylum seekers and migrants who came to the UK as children, are given the support that they need while they are in the UK by amending Schedule 3 of the Nationality, Immigration and Asylum Act 2002 so that it does not apply to people who initially came to the UK as children. It would not create an automatic right to support but would make sure that a young person is not discriminated against on the basis of his or her immigration status.
The concern is that young people are leaving care and being made destitute. Another point to make clear at the outset is that while being so harsh to these children, it is unlikely that they will be returning home to Eritrea, Afghanistan or anywhere else earlier, and it may well make it more difficult for them to return home as they disappear into prostitution, disappear from sight, and go underground.
Although the immigration status of a separated or unaccompanied child does not affect their entitlements while they are in care and as care leavers under the Children Act 1989, a young person’s entitlements after 18 will depend on their immigration status. There has long been concern about the forced destitution of former separated asylum-seeking children when they turn 18 and a recent report from the Children’s Society found a sharp rise in the number of young people who are experiencing destitution. The majority of unaccompanied children in the UK are seeking protection from violence, abuse and persecution from places like Afghanistan, Eritrea and Iran. Some of these young people experience destitution because they are discharged from children’s services at 18, and have been refused asylum and exhausted their rights to appeal, often despite significant barriers to their return or continuing protection needs.
Case law has made it exceedingly clear that a young person in this situation should not be moved on to support provided by the Home Office but continue to be supported by the local authority. However, in practice, this still happens as the Nationality, Immigration and Asylum Act 2002 prevents some categories of migrants from accessing certain types of support, including leaving-care provisions, and practice among local authorities varies widely due to confusion around entitlements and their budgetary pressures.
The Government say:
“There is absolutely no intention that destitution should be a deliberate aim of public policy. That would be wrong and that is not the aim of immigration policy or any other part of our policy”.
However, the provisions under Schedule 3 have precisely this effect by withdrawing vital leaving-care support from young people while they are still in the UK. This is at odds with the Government’s policy on supporting British care leavers. As I say, there is also no evidence that withdrawing support is effective in encouraging young people to return to their country of origin. A growing body of evidence demonstrates that forced destitution is an ineffective policy. In fact, severing contact between refused asylum seekers and the authorities is likely to make returns more difficult.
Destitution has severe consequences for young people’s safety as these vulnerable young people are forced to take extreme measures to survive, including being sexually exploited, working illegally or being forced into criminality. It also has an impact on a young person’s physical health, for example, through their being malnourished and unable to travel to see their GP or get warm clothing in the winter, as well as having adverse effects on their often already fragile mental state. Various systematic reviews estimate that 19% to 54% of separated children suffer from symptoms of post-traumatic stress disorder compared with 0.4% to 10% of other children in the UK. Being able to access education and safe housing—two key protective factors for separated young people—becomes more difficult when young people are destitute. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, my name is added to this amendment. I would like to speak particularly about young people who have been trafficked into this country. I declare an interest as the co-chairman of the trafficking parliamentary group and a trustee of the Human Trafficking Foundation. The Refugee Council and the Children’s Society have highlighted this particular group of young people who come within Amendment 234. They are included in the young people to whom the noble Earl, Lord Listowel, referred but they form a very specific group of young people who have been trafficked into this country, are identified as having been slaves and are often put into care or accommodated by the local authority which arranges for them to go to school and live in England until they are 18. Some may be asylum seekers. The latter were referred to by the noble Earl, Lord Listowel. However, some are not asylum seekers and the minute they turn 18 they become illegal immigrants under Schedule 3 to the relevant Act, and there is no one to protect them. If they remain in this country, they are particularly vulnerable. They have no status, no access to public funds and no housing. Some of them sleep on the streets and are dependent on soup kitchens. They are destitute. Others are at real risk of being sent back to the abusing situation in the country of origin from which they had escaped, having been trafficked here. Some of them are terrified at the prospect of going back because they may be retrafficked or may well be very ill-treated for having escaped the traffickers, so to go back to their country of origin, particularly when that is Nigeria, is extremely problematic.
We are in the extraordinary position of having identified these young people as victims of trafficking and having cared for them in this country where they were looked after and made welcome. However, the moment they turn 18, they are considered to be illegal immigrants and no one looks after them. I ask the Minister to look at this group of trafficked children, who probably number 100 or 200, who have been to school in this country. I have no idea what the actual number is but it is tiny. It is a pretty odd situation if we look after them and educate them but then leave them destitute the moment they turn 18.
Baroness Lister of Burtersett
My Lords, I wish to speak briefly in support of the amendment, and I am very pleased that it has been tabled. The noble Earl, Lord Listowel, and the noble and learned Baroness, Lady Butler-Sloss, have both talked about destitution. I was a member of the Parliamentary Inquiry into Asylum Support for Children and Young People. That was a slightly wider group than that on which this amendment is focused, but the point is the same. We said that:
“Although the inquiry’s focus was on those in receipt of asylum support, the panel was shocked to hear of instances where children were left destitute and homeless, entirely without institutional support and forced to rely on food parcels or charitable donations. Evidence received by the inquiry cited counts where children made up between 13-20% of the local destitute population”.
I find it shameful that we have anyone in the population who is destitute in a society as rich as ours. It is particularly shaming that people who have come to this country to seek refuge should be destitute, and that children should be destitute.
Perhaps I may reinforce what the noble Earl said by referring to a case study which has been provided by the Refugee Children’s Consortium. It states:
“Case study: Matthew—a young person from Iran. Matthew is a torture survivor who came to the UK from Iran when he was aged 17. He was refused asylum and wanted to appeal but his solicitor did not want to support his appeal so he went to court unrepresented. His appeal was rejected and children’s services stopped his support. He was made homeless for one year. He was seeing a psychologist while being supported by children’s services but once the support was cut off, the counselling stopped as well. While homeless Matthew’s health deteriorated”—
is that surprising?
“He couldn’t sleep at night. His hair was falling out. He experienced a lot of violence when he was sleeping on the streets. Sometimes he was able to work for his friend in exchange for accommodation. He was desperate to stay in the UK because he feared for his life if he were to return to Iran. With help from The Children’s Society he was able to get a new solicitor and put in a fresh claim”.
This really should not happen.
I was also involved in the launch of a report from Freedom From Torture about the poverty experienced by torture survivors. One of the strong messages in that report was how poverty undermines the rehabilitation of torture survivors. This is dreadful. Torture survivors, who are psychologically scarred, then have to go through further ordeals when they get to this country. I hope very much that the Minister will be able to say something rather more positive in response to this amendment than perhaps was the response to the previous amendment by the noble Lord, Lord Nash.
Baroness Butler-Sloss
The Refugee Children’s Consortium and the Children’s Society do not think that trafficked children are being properly looked after. Would the Minister take that back? Could those behind her have a discussion with the Children’s Society and the Refugee Children’s Consortium, who have some very worrying examples? At this stage of the evening I did not want—if I may say so—to bore the Committee with endless examples but they have examples of children identified as trafficked who, at the age of 18, are destitute. Others, they think, would be in grave danger should they go back home but are not given the opportunity to stay. There are these two groups. If those behind the Minister would be prepared to be in touch with the Children’s Society and the Refugee Children’s Consortium, perhaps some useful discussion might take place.
Baroness Northover
I thank the noble and learned Baroness for that. I am sure that my colleagues here will take that on board. That might also be part of our general discussions on trafficking.
Children and Families Bill
Baroness Butler-Sloss Excerpts(11 years ago)
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Baroness Walmsley (LD)
My Lords, I wholeheartedly support the passionate plea of my noble friend. I do not believe that, when the Labour Government brought in the original Bill, their intention was to totally exclude young people with dyslexia from the possibility of ever completing an apprenticeship. I do not believe that it is the intention of this Government either. I accept that it may be a little tricky to sort this out and that this is probably the first legislative opportunity to change the legislation that inadvertently produced this situation, so we must make use of it.
I am very proud of this Government’s record on apprenticeships but they must not exclude talented young people who are able to get through all the practical side of the apprenticeship, often with flying colours, and show tremendous commitment, hard work, conscientiousness and all those qualities that we are looking for, but simply need a little help with written material. That help, once given, will enable them not just to get through the exam but to move on into a career. If we can sort this out, it will also send a message to employers that says, “There are a lot of talented people here who have gone through their apprenticeships with a little bit of help and they will prove to be very worthwhile employees to you if you take them on, post-apprenticeship, as long as you give them a little help”. I think that many local authorities can help employers to do that. What is the alternative? As my noble friend said, they end up with “NEET” on their foreheads. That is what we do not want. It causes the young people and their families a great deal of distress and, in the end, there can be long-term costs to young people from not being in employment, education or training.
These young people have a chance and we must make sure that they get it. It is soul-destroying when they start the apprenticeship, get through all the rest of it, and then find that they cannot complete it and get that important certificate because they cannot complete the written part. We really have to sort this out and we have to do it now.
Baroness Butler-Sloss (CB)
My Lords, several members of my family have varying degrees of dyslexia. All are able and intelligent, and have talents. My daughter-in-law, who has moderate dyslexia, has an excellent degree from the University of Bristol. It can be done but these people must have extra. That group of young people who want apprenticeships will be a loss to the country if they cannot get through the necessary exams. It is a major advantage for the country to make sure that they get through. The noble Lord, Lord Addington, and the noble Baroness, Lady Walmsley, have put this case extremely well. It is a relatively simple matter and I endorse the excellent work done by this Government in many respects, particularly on apprenticeships, but we should not leave out this important group. The funny thing about this is that it is often not properly appreciated that an enormous number of young people are dyslexic. Let us get out there, find them, help them and make them really useful members of society—without, as the noble Baroness, Lady Walmsley, said, “NEET” across their foreheads.
Lord Ramsbotham (CB)
My Lords, my amendment is very short and applies to many other aspects of this part of the Bill, particularly anything connected with assessment and further work, which, as my amendment states, should happen as soon as possible. I tabled it because I was disappointed that although this clause has, “Using best endeavours” in its title, there was no reference to a sense of urgency. Urgency is needed, as has been vividly explained by the noble Lord, Lord Addington, because people who have been identified with a possible SEN must be given the opportunity of developing as soon as possible so that their valuable time is not wasted. That is the purpose of my amendment.
Earl Attlee
My Lords, I am grateful for the noble Baroness’s comments. I was asked about support for apprenticeships. We amended the Bill following pre-legislative scrutiny to ensure that young people on an apprenticeship could receive support through an EHC plan. This puts people in apprenticeships on the same footing as those in further education.
Baroness Butler-Sloss
I apologise for interrupting the Minister yet again, but we are dealing with an extremely limited point. It is not support during the apprenticeship that we are talking about; it is support to complete the apprenticeship. That is not there at the moment; there is a gap and that is where the problem is. I am not sure that the Minister—with so many of us in this Room—has quite understood the particular problem about which we are concerned and which the noble Lord, Lord Addington, has so very well set out.
Earl Attlee
My Lords, when I have finished my speech, the best thing all of us can do is to read Hansard carefully, but I am not deaf to your Lordships’ concerns. On the other hand, I am not an expert on them either. The noble Lord, Lord Addington, and the noble Baroness, Lady Howarth, suggested that apprenticeships are not covered by the Joint Council for Qualifications’ guidance. As a point of clarity, the JCQ includes functional skills in its guidance. I or my noble friend Lady Northover would be happy to meet noble Lords to follow up on this.
In addition, the Equality Act 2010 applies to all apprenticeship training providers and employers. They are required to make reasonable adjustments for disabled young people during their apprenticeships. We will promote the availability of reasonable adjustments in apprenticeships more widely, including through the National Apprenticeship Service. We are also currently considering how we can improve data collection to monitor how effectively we are supporting young people with SEN and disabilities in apprenticeships.
More widely, Clause 27 states that a local authority is under a general duty to keep the special education provision in its area under review and consider the extent to which that provision is sufficient to meet the needs of young people concerned. In doing so, it must consult proprietors of post-16 institutions, which would include private training and apprenticeship providers.
Given these existing duties, the additional measures in the amendment are unnecessary. In addition, they risk having a negative impact on apprenticeship providers, including small businesses. There are currently 100,000 employers in more than 160,000 workplaces offering apprenticeships. Most employers use a training provider to help deliver the apprenticeships, and the majority of providers are private organisations.
My noble friend Lord Addington asked me about the requirement to achieve English and maths qualifications to be removed from apprenticeship completion conditions.
Baroness Jones of Whitchurch (Lab)
My Lords, I will comment briefly on the amendments and support the noble Lord, Lord Addington, and other noble Lords who have spoken this afternoon. As ever, the noble Lord, Lord Addington, made a very powerful case for quality teaching to identify children with dyslexia and all other specific learning difficulties. It is important that we broaden it and do not just concentrate on the—very important—needs of children with dyslexia.
In earlier debates on the Bill, and again this afternoon, we have stressed the importance of earlier intervention. The noble Lord, Lord Storey, has just done that again. It is important that we identify children at the earliest opportunity so that we can give them the support they need to maximise the opportunities that their education can give them. These amendments clearly build on that theme. However, for early intervention to take place consistently, all teachers should be trained in the technique of spotting where it might be necessary. They need to be aware of the range of support mechanisms that are effective and can make a difference. This cannot be left to chance or to some teachers developing a personal interest in SEN, which is, all too often, what happens at the moment.
For each teacher who is unaware, or fails to act, another child’s life chances are blighted. We very much agree with the mandatory module in teacher training. Leaving it to individual schools to provide the knowledge and skills for teaching staff will leave it too late, and we believe it will result in piecemeal provision if we proceed on that basis. Sorting this provision out is crucial to the success of all other aspects of the Bill when it comes to SEN. If we do not get teacher training right, all the other aspects of support that we are talking about here will fall at the very first hurdle.
We also agree with the proposal that the SEN co-ordinator should be a qualified teacher who has been trained in SEN and specific learning difficulties, and we were pleased that the Minister has now acknowledged that the co-ordinator should be a qualified teacher. These high-level skills are crucial to ensure that the school properly focuses attention on the needs of specific groups of pupils, as specified in the new Ofsted framework. It is an interesting development that, with the Government’s new-found faith in unqualified teachers, special educational needs co-ordinators will be the only posts in a school required to be qualified teachers, but I slightly digress.
This leads to another issue, which is that if the Minister agrees with the amendments with regard to teacher training modules and the status of school SENCOs, we are faced with a considerable knowledge deficit among existing teachers, both qualified and unqualified. What further steps do the Government intend to take to ensure that training for existing teachers and, indeed, existing SENCOs can meet our expectation of early intervention and action? How can we be confident that their knowledge of the latest physical and technical equipment is kept up to date if we are focusing just on newly qualified teachers and new training for SEN teachers? I am echoing the points made by other noble Lords, and I hope that the Minister will be able to address the issues.
Baroness Butler-Sloss
When my dyslexic granddaughter was identified as such in her excellent primary school, it sent someone out to learn about it because there was no one in the school who had any idea of how to deal with dyslexia. It was an excellent primary school in north London, Eleanor Palmer Primary School, for which I have the highest respect. I wonder how many schools, if they had a dyslexic child, would take the trouble to send somebody out to learn. If a school as good as that did not have anyone who understood it, what is going on? It seems to me that these amendments are extremely important.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, there is a Division in the Chamber. The Committee will adjourn for 10 minutes and resume at 6.02 pm.
National Curriculum: Violence against Women
Baroness Butler-Sloss Excerpts(11 years ago)
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Lord Nash
I pay tribute to the noble Baroness’s work on women’s and girls’ rights and opportunities. We support the principle behind her Question, and the DfE fully supports the Home Office’s excellent strategy in this regard. However, we do not believe that the most effective way of doing this is for the department to try to send messages to all girls. We are looking into how best to get information and messages to them. The This is Abuse campaign run by the Home Office is already doing good work in this regard. Later this year, Ministers from the Department for Education, the Home Office and the Department for International Development are to meet representatives from head teachers’ and teachers’ unions to discuss how best to raise awareness among staff and pupils of risks linked to gender-based violence. I am sure that the noble Baroness will also agree that any messages need to go to boys as well as girls.
Baroness Butler-Sloss (CB)
My Lords, the noble Lord, Lord Northbourne, has been passionate about the importance of parenting being part of citizenship. If the Government took that on board, the very important issue of domestic violence would fit very neatly into it.
Children and Families Bill
Baroness Butler-Sloss Excerpts(11 years, 1 month ago)
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Baroness Northover (LD)
With the leave of the Deputy Chairman of Committees, I hope it might be helpful to everyone taking part in this Grand Committee if I draw attention to the revised calendar for this Bill, published with today’s edition of forthcoming business. The calendar shows that the usual channels now hope that we will complete the Committee stage of the Bill in 11 sessions in total—that is, seven more sessions including today. It also sets out the clauses that we hope to cover each day so that people who want to take part in a particular part of the Bill can plan their diaries. The calendar is not binding but it has support across this Committee. We hope we can complete our work here on 18 November. Can I encourage everyone here to try to reach the target today, the group led by Amendment 81, so that we can complete the stage in good order?
Baroness Butler-Sloss (CB)
My Lords, perhaps I might make a point, as a Cross-Bencher, about the amount of time that may be allowed on Report. It is a matter of some concern that this Bill has been committed to a Grand Committee when a number of people who are concerned about the Care Bill would have liked to be here. Those people may well wish to speak on Report when they would otherwise have spoken in Grand Committee. Consequently, we may find that Report lasts a bit longer than the Government would choose. Therefore, it would be helpful if the usual channels took that on board in arranging the number of days appropriate for Report.
Baroness Northover
I thank the noble and learned Baroness for that comment. I will of course take it back to the usual channels.
Clause 15: Care plans
Amendment 65
Baroness Hughes of Stretford (Lab)
My Lords, I will not dwell on this because it rehearses a theme that we spent a great length of time on in discussing Part 1 of the Bill—that is, the importance for children, when their families break up or they are taken into care, of keeping in contact with their birth family as appropriate, particularly with their siblings. The Minister was not the Minister discussing the Bill with us when we talked about Part 1. Therefore, he did not hear the strength of feeling across the Committee on this issue, which was such that the Minister—the noble Lord, Lord Nash—acknowledged it and agreed to take the issue of sibling contact back and look at it. So I hope, when the Minister sums up, that I will not need to rehearse the arguments; I hope he will take that on trust and, similarly, look at it with his colleague, the Minister in the Department for Education, and come back on Report.
The amendment is, however, different from the amendment that we talked about in relation to Part 1. It would require the court, at the stage of considering permanence for a child, to pay particular attention to any siblings and where they are, and to continued contact between siblings when making or approving the permanence plan for a child through a care order. Amendment 65 would therefore insert “and sibling placement arrangements” after “provisions”. It is very important that this issue is considered not only by social workers and professionals, as we discussed when we looked at the amendment to Part 1, but particularly at the court stage. Clause 15, as it is worded, does not include arrangements for siblings to be placed together where possible. It does not include anything that requires the court specifically to consider the arrangements for brothers and sisters.
It is essential that this is considered at the court stage because after that, while there are a number of possible opportunities for detailed arrangements in permanence plans to be considered, there are none really to go back and address this issue. Independent reviewing officers, for example, do not have the same authority as the courts to scrutinise care plans and they cannot take the matter back to court directly if they consider that the care plan is deficient in one way or another. They can only refer the matter to a CAFCASS officer who can then maybe bring a claim on behalf of the child if they consider that there are grounds for judicial review or a free-standing claim under the Human Rights Act. In practice, as I am sure Members can appreciate, that power is rarely used. Therefore, it is very important to get these issues about continued sibling contact right in at the front end when the courts are asked to scrutinise the arrangements for permanence when thinking about a care plan.
I will not rehearse all the arguments as to why that is important. I suspect the Minister may appreciate them. I will, though, rehearse one statistic that we used in the previous debate. I hope that the Minister will not say that the courts will do this anyway. The figures that we looked at then suggested that some 63% of children who go into care and have siblings who go into care lose contact with those siblings. Clearly, at various points in the process—in court, through social workers, through the placements—contact is being broken for the vast majority of children who go into care as part of a sibling group. I hope that the Minister will be prepared to look at this and respond positively to it. I beg to move.
Baroness Butler-Sloss
My Lords, I support the noble Baroness in this amendment. At his request, I will also speak to the amendment of the noble and learned Lord, Lord Mackay of Clashfern. Is that separate? It is separate, so I will speak entirely to this amendment.
At the adoption stage, Part 1 of the Bill, a number of us spoke about the importance of sibling contact. I made the point—I make no apology for making it again to a different Minister—that the Select Committee on Adoption Legislation took informal evidence from a considerable number of children. One of the points made both by the group who were adopted and the group in care concerned the enormous sorrow they felt at losing contact with the siblings they knew. Very sensibly, one girl said, “I am not concerned about the siblings born after I left the family but I am very worried about my brothers and sisters”. Another child was almost in tears as he was so worried about his younger brother, not knowing what was happening to him and nobody being able to tell him. He said he woke up at night worrying about his brother. That is not acceptable. Therefore, it is important at each stage that those in charge of children or in charge of making arrangements and connections with children have the siblings in mind. The judge may well say that the social workers have given him all sorts of good reasons why they are not going to meet, but it is important that the judge asks. There is no requirement on the judge, or indeed the magistrates in the family proceedings court, to ask that question unless it is in legislation.
Baroness Howarth of Breckland (CB)
My Lords, I know that David Norgrove was very concerned that judges spent quite a considerable time reviewing care plans and that might well delay looking at the future of children. However, I cannot see why this aspect should not be looked at. When the judge is looking at the placement of the child before him, he must look at the whole family, the parental position and what is going to happen to the siblings. Although I understand absolutely why David Norgrove felt that the local authority should be the one looking sensibly at the care plans, I do not at all see why the court should not look at the sibling placement.
Baroness Butler-Sloss
My Lords, with the leave of the Committee, I shall speak in place of the noble and learned Lord, Lord Mackay of Clashfern, at his specific request. He was here on Monday, but he was just not reached and is unable to be here today. The noble and learned Lord is making a plea for the Family Law Act 1996. As Lord Chancellor then, he was responsible for its introduction in the House of Lords. A considerable part of that Act has not been commenced, but Governments since then have left it on the statute book.
Clause 18 of the present Bill repeals the whole of that which remains of the 1996 Act. The noble and learned Lord has said that since he was involved he felt diffident about raising the issue, but then he learnt that at least some of those concerned with family law did not know that the Act was to be repealed. He felt that he had a responsibility towards those who had supported him to point to this development. Perhaps the Committee will forgive me if I read the noble and learned Lord’s principal concern. He has written that,
“with no-fault divorce which I advanced on the basis that to require a spouse seeking divorce to make allegations about the other spouse which would not require to be proved was not conducive to the vital task of promoting good relations between them for the sake of the children”.
In other words, “no-fault divorce” means that the parties do not rake up unpleasant things about each other which can only be bad for the children. He adds:
“So far as I know its retention on the statute book has done no harm”.
I would add that Part 1 of the Family Law Act 1996 sets out what I do not believe we get anywhere else; that is, the principles of Parts 2 and 3 of that Act. It states that,
“the institution of marriage is to be supported … that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage”—
which is admirable—
“that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end … with minimum distress to the parties and to the children affected”.
It goes on like that. It sets out in about one page the general principles of good behaviour between parties to a marriage that has broken down. It is sad that there are issues of reflection and consideration before the divorce.
One might say that all that is old hat. Marriages go on, thank goodness. The majority of people who live together do not get married but a lot do. To have these good principles on the statute book has done no harm and will do no harm. It will at least make available to people the desirable end to those marriages that have broken down, and make some effort to remind them that they should try to minimise distress to everyone, particularly their children. I might add grandparents to that. It is sad that it is apparently necessary, under Clause 18, for this Act to be repealed, which is the purpose behind the noble and learned Lord, Lord Mackay of Clashfern, opposing that it should stand part of the Bill.
Lord McNally
My Lords, one of the perils of being a Minister in this House is that the continuity that is one of its merits means that changes to decades-old legislation may mean that we find the author still with us, alive and kicking. We saw something similar on Monday when noble and learned Lords wanted a rematch of decisions made by Law Lords some decades ago. However, that does not mean I take lightly the point made by the noble and learned Lord, Lord Mackay. After our Monday sitting, I had a long conversation with Sir James Munby on Tuesday. I mentioned the point raised by the noble and learned Lord. Sir James was somewhat wistful about the ambitions of the noble and learned Lord to bring in the concept of “no-fault divorce”, which had not progressed as much as the authors of the Bill at that time had intended.
I have listened with great care to the points made on behalf of the noble and learned Lord, Lord Mackay, by the noble and learned Baroness, Lady Butler-Sloss. As I have said, I have the utmost respect for the position of supporting the principle of “no-fault divorce”. I acknowledge the expertise of the noble and learned Lord in this area and I know that when he introduced the Family Law Bill in this House in 1995, it was a Bill very close to his heart.
I fully understand that the provisions of Part 2 were intended to save saveable marriages and reduce distress and conflict when it was inevitable that a marriage would need to be brought to an end. While Part 2 retained as the ground for divorce the irretrievable breakdown of the marriage, it would, if implemented, have removed the need to establish irretrievable breakdown through one or more facts. I understand why proponents of no-fault divorce believe that the approach in Part 2 would have helped to reduce conflict and acrimony.
However, there are two separate issues here. The first concerns the principle of no-fault divorce in Part 2, and the second concerns the information meeting and other provisions of Part 2 which were an integral part of that policy. The Government in 2001 concluded that the provisions were unworkable, would not achieve the objectives of saving saveable marriages and reducing distress and conflict, and should be repealed. It is that second issue that led us to include Clause 18 in the Bill.
The decision to repeal Part 2 was made in principle long ago on the basis of extensive academic research by the University of Newcastle. The research looked at six models of information meeting that a party to a marriage would have been required to attend as the key first step in initiating a divorce. Part 2 is built around that initial mandatory information meeting. The research concluded that none of the six models of information meeting tested was good enough for implementation nationally. For most people, the meetings came too late to save marriages and tended to cause parties who were uncertain about their marriages to be more inclined towards divorce. While people valued the provision of information, the meetings were too inflexible, providing general information about both marriage-saving and the divorce process. People wanted information tailored to their individual circumstances and needs. In addition, in the majority of cases, only the person petitioning for divorce attended the meeting. Marriage counselling and conciliatory divorce all depend on the willing involvement of both parties.
Repeal of Part 2 has been awaiting a suitable legislative opportunity. The Children and Families Bill now provides that opportunity. Repeal was part of the draft Bill published for pre-legislative scrutiny in September 2012. None of the written responses opposed repeal of Part 2.
The Government have introduced separate measures in Clause 10 to make it compulsory for an applicant in certain family proceedings first to attend a family mediation, information and assessment meeting—I realise we will be having further debates about that on Report. That provision has some similarities with the information meeting provision for divorce in Part 2 and will, we intend, address disputes about children and finances.
Mediators who conduct the MIAM will check with the parties whether they wish to save their relationship, as well as discuss ways to resolve a relevant family dispute with the minimum of distress, including, in particular, arrangements for any children. However, Clause 10 addresses disputes between both cohabiting and divorcing couples.
Repeal of Part 2 is a long-standing commitment to Parliament. There is no prospect of Part 2 being implemented. Therefore Clause 18 should stand part of the Bill.
Baroness Butler-Sloss
My Lords, the noble and learned Lord, Lord Mackay of Clashfern, wanted this matter raised, but he does not wish it to be pursued any further.
Lord Nash
The answer is yes.
In developing the guidance, we would welcome discussions either bilaterally or by hosting a round table discussion, whichever is more helpful. Once the draft guidance is prepared, we intend to consult publicly before publishing a final version next year. This will give schools one term’s notice of when the new duty comes into force.
I have listened with interest to the debate on the other grouped amendments. I hope the Committee will agree that the amendment I have tabled will help to support a significant group of children, many of whom meet the Equality Act definition of disability, who previously may not have been explicitly covered by the provisions of the Bill. I would like to reflect further on the other points raised in debate today in relation to the other amendments before us and consider them further. In doing so, I would be grateful for the Committee’s help in providing specific examples of other conditions or other groups of children who are having their educational opportunities restricted, and who are not supported by either existing legislation or the provisions of the Bill as they currently stand.
The noble Lord, Lord Low, gave some specific examples, most of which would be covered by the amendment that I have tabled, but other examples would be helpful. It is always a pleasure to reply to the noble Baroness, Lady Grey-Thompson, who is one of our country’s greatest athletes—
Baroness Butler-Sloss
I have listened to this debate with great interest, very much as a novice in this area, although I have been governor of two schools where we had disabled children. I got the impression from what various speakers have said in this debate that there are problems for all disabled children, not just individual groups. The Minister should take away the problems of all disabled children in all sorts of schools.
Lord Nash
I thank the noble and learned Baroness for that intervention. Clearly, we all got that impression, but we would like help on precisely what category of children are not covered by the existing legislation. I will take away all the points made today and we will reflect further.
Children and Families Bill
Baroness Butler-Sloss Excerpts(11 years, 1 month ago)
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Baroness Hughes of Stretford
My Lords, I am sure that Members of the Committee will recall that last week we debated the importance of kinship care and, unless there are reasons why this should not happen, the importance of children in care keeping in touch with members of their biological family one way or another. This amendment rehearses some of those arguments. Indeed, the importance of family contact and strengthening the potential for family contact for children in care will be a theme that I will return to a number of times as we go through the Bill.
The effect of Clause 7 is to clarify the existing law that any decision by a local authority about allowing a child in care—under a care or emergency protection order—contact with the parents or some other family member is subject to the local authority considering whether such contact would place the child at risk of harm. Obviously that is essential and, although the law probably currently provides for that, we have no objection to it being clarified here in Clause 7.
However, we think that if the Government are serious about the importance of continued family contact, they should go further and require local authorities to give specific consideration to enabling children in care to remain in contact with their siblings. That is the purpose of Amendment 32. We know that sibling contact has not always been a priority for agencies—certainly not the priority that it seems to be for the children themselves. We think that there is a need for the Government to enshrine sibling contact as a priority in the legislation.
There are two main reasons why we think that. First, 63% of children in care whose siblings are also in the care system are separated from them, so the vast majority of children in care who have siblings in care as well are not together. Those living in children’s homes are much more likely to be separated from their siblings than those in foster care, yet the sibling relationship is often the longest relationship in a child’s life, potentially offering the stability that is often absent from other aspects of the life of a child in care. The second reason is understandable: it is that young people in care themselves feel strongly that they generally have too little contact with their siblings. Some 85% of children in care thought it important to keep siblings together, and over three-quarters thought that councils should help children and young people to keep in touch with their brothers and sisters.
This amendment would make that sibling contact a priority in social work practice. I think we can all understand why continued contact with your brothers and sisters when you are in care is fundamental, yet it seems now that in many cases—the majority—siblings are separated and risk losing that contact, stability and link to their biological heritage. I hope that the Minister will accept the amendment. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I strongly support the amendment. As I think I said at our previous sitting, when I chaired the adoption committee we had two meetings with children, one with looked-after children and the other with children who were or were about to be adopted. Each group made it absolutely clear, particularly younger children—the seven, eight, 10 or 12 year-old children—how important their siblings were. They said to us that siblings were more important to them than parents. Some of them would have liked to have seen their parents; they all wanted to see their siblings. It was so sad; one little boy said, “I’m so worried about my brother. I don’t know what’s happening to him. Nobody will tell me and I’m not allowed to see him. I wake up at night wondering how he’s getting on”. That is not acceptable for children. The amendment would alert everybody to the importance of siblings, which is why I support it.
Baroness Hamwee
My Lords, I very much agree with all that has been said. I remember being struck by the strength of feeling expressed by the young people. At our previous sitting we talked about the importance of identity; contact with one’s siblings and understanding that family dynamic is another aspect of identity. I have been impressed by somebody outside the group of people whom the noble and learned Baroness saw, whose feeling of responsibility for her younger sibling was important to her to express and fulfil. By separating her from her younger sister—by being deprived of caring for her—she was being deprived of the expression of her own personality. That was of huge significance to her.
Lord Storey (LD)
My Lords, I support what the noble Earl, Lord Listowel, has said. I remember him stalking in the Corridor in July; he was very excited and asked whether I would support this. I did not indicate but walked away and reflected on what he had said. I remember my professional circumstances, where foster parents at my school came to talk to me about this issue and how upset they were. It was quite traumatic for them as foster carers to lose children at 18 when they had so much more to offer in those important years. I thought about my own children. At 18 my daughter has just gone to university. It has been a very difficult time for her and she has needed the support of her parents, her family and friends.
We talk about cost but the cost is minimal: there is a saving. Never mind the savings we have heard about in terms of compassion as a society but the savings, as research has shown, in terms of those young people being more likely to be successful in their lives. If they are more successful in their lives, there will be fewer problems that we might have to pay for later on.
Baroness Butler-Sloss
My Lords, I, too, support the amendment. It is so obviously a good idea. I have a suspicion that if it is not part of the legislation a voluntary system will work in a few places and will be disregarded right across the country. It is for that reason that it needs to be made part of the legislation.
Baroness Hamwee
My Lords, the meeting arranged by the noble Earl brought a number of comments about Staying Put. It was clear that there is a shortage of accessible information—particularly because not all authorities are operating the system—and that there are real complications when there are cross-boundary considerations. That follows on from the point made by the noble and learned Baroness.
Some things were mentioned which really took me aback. When a young person becomes 18, if he or she does stay with the foster parents a tenancy agreement has to be signed. As a couple of the young people we met said, “This does not reflect our relationship. They are our foster parents; they are not our landlords”. It is necessary, I understand, to have a tenancy agreement in order to qualify for housing benefit and income support. I asked how the total income compared to fostering allowances and I was told by the foster carer we met that the total income had reduced by about 50%. He was very enthusiastic about his foster daughter remaining with him. That foster daughter also said—she was part of a sibling group—that she had to be CRB checked in order to stay with her sisters. Something has gone wrong with the system.
Baroness Butler-Sloss
“Provision of accommodation for children
In section 20 of the Children Act 1989 (provision of accommodation for children: general) after subsection (1) insert—“(1A) Where a local authority provides accommodation for a child identified as a victim of human trafficking who has been trafficked into England or Wales, that local authority shall have parental responsibility for that child during the period that child remains in the accommodation of the local authority or until the arrangements for the child have been completed, or both.
(1B) Where another local authority provides accommodation for that child, that local authority shall have parental responsibility for the child during the period that child remains in the accommodation of that local authority or until the arrangements for the child have been completed, or both.””
Baroness Butler-Sloss
This amendment deals with a totally different subject. There are three amendments in this group but I do not propose to speak to Amendments 43 or 234 because I understand that those who tabled them will in due course ask to degroup them. Therefore, I shall speak exclusively to Amendment 39.
This amendment relates to the most disadvantaged group of children who come into this country. Very often, they are children brought here against their will, or certainly without any knowledge of what is going to hit them when they get here. They may be sexually exploited or they may be victims of domestic service or forced labour, such as the Vietnamese boys who run the cannabis farms in rented accommodation. Among them are boys who are trained, Fagin style, to steal, and there are other children who go through appalling sorts of slavery. When they escape, or if they are fortunate enough to be picked up at the border control, they are not as well looked after as adults.
This is an area where adult victims of human trafficking—modern slaves—are quite well cared for in this country in many ways. It is much to the Government’s credit that they have signed the European directive on human trafficking and, indeed, are in the process of implementing it. However, we fall far short of what should be done with the children. They are placed in the care of a local authority, not under care proceedings, which we discussed earlier today, but under Section 17 of the Children Act 1989, which requires local authorities to look after a child in their area. They are placed with the nearest local authority by whoever has identified them as trafficked, and the local authority has an obligation to look after them under Section 20 of the Children Act. I repeat: it is an obligation to accommodate.
We know that very worrying numbers of children go missing from local authority care. Local authorities do not even know why or how some of these children have come into care because it takes anything up to 48 hours to register a child into care, and these children often go missing within 48 hours. In another place, Peter Bone MP sent a message to all local authorities asking how many children who go missing are trafficked children. No local authority responded with any figures at all, and only about eight out of all the local authorities responded at all but they had not identified the children who were missing as trafficked children.
If the children have a mobile phone, as they usually do, they are given a number and are told to ring the trafficker. The trafficker waits outside the care home, or very often the home of the short-term foster parents who have not had time to get organised with this child who is suddenly dumped on them: the child gets the telephone call, goes out of the front door and is never heard of again. Those children are trafficked or retrafficked. Something like 300-odd children have been identified as being trafficked, and that, I suspect, is the tip of the iceberg.
The reasons for asking for a local authority to have parental responsibility are twofold. One is that these foreign children do not have anyone in this country with any responsibility for them until they get to the local authority—perhaps with the exception of those who are trafficking them, who may be relatives. Secondly, the local authority does not have parental responsibility, as defined in the Children Act, for these accommodated children; it simply has a requirement to accommodate them. It is right to say that there is a requirement to look after them but if they do not have parental responsibility—and local authority social services know exactly what parental responsibility means—that is what they receive after they get a care order. Even an interim care order gives them a joint parental responsibility with the family. However, for these foreign children there is nobody with parental responsibility.
Parental responsibility may not be the best way of dealing with this; there are two views on it. I have tabled this amendment because I am concerned that, currently, local authorities are not treating these children with the seriousness that they should. Local authorities are overworked and very often under-resourced. These children are dumped on them at very short notice, identified as having been trafficked and are not given the same degree of care as a child who goes through the care process in this country. It seems that there are two ways forward here. Either the local authority makes a care application, which costs money—and it is getting more and more expensive for local authorities to make care applications—or, as I suggest, there should be an automatic parental responsibility. It would not cost a penny but it would flag up to local authorities the actual responsibility they have for these children who are dumped on them. They cannot just accommodate them and not really take that extra step of being a joint parent.
I am extremely concerned about the standards for the children we have been talking about last Wednesday and today. They are only a small number of children but, my goodness me, we are failing them. It is a blot on the England and Wales system, under which we are failing to deal with them. I do not know whether I really need to declare again an interest as a trustee of the Human Trafficking Foundation or as co-chairman of the All-Party Group on Human Trafficking and Modern Day Slavery, but this is a truly serious matter for a small group of children. One way of dealing with it is to give local authorities parental responsibility. It would hit them with the fact that they have to do something practical about these children.
Barnardo’s was given some money—I believe by the Government—to trial having specialist foster parents to look after trafficked children. I was told by one of the representatives of Barnardo’s that it was not taken up. I think that 15 specialised foster parents were trained and that local authorities were told they could have this for nothing. They were not being asked to pay a penny and they did not take it up. I think there were two or three places where local authorities did not do it, which is an indication of the degree of concern that I understand the overworked social services have for this group of children. Something absolutely has to be done. I beg to move.
Lord Northbourne
My Lords, I rise to reinforce, in a way, what the noble and learned Baroness, Lady Butler-Sloss, has said but also to ask some questions. I should perhaps declare an interest as a council tax payer in the district of Dover. As I see it, the amendment, as tabled, would require the local authority to bear the financial responsibilities of looking after these trafficked children, far more of whom probably come in through Dover than through any other point of access to the United Kingdom.
It so happens that a year or two ago, my wife chaired the Kent Community Housing Trust, which is for old people. During that time they received a panicked telephone call from the county council saying, “We simply can’t cope with this flow of people. Can you help us?”. Luckily, an old people’s home was able to be diverted for that purpose. As the noble Baroness said, it is not easy. In one case a child arrived at the children’s home absolutely white with fear and said that he had just seen a murder and the murderer. The child knew that the murderer had seen him, so he feared for his life. He was kept in the home for 16 days and at the end of that period he slipped down to the village to buy some fags and was never seen again. We are talking about quite a tough world.
What are the financial implications for local authorities which receive an enormous number of young people? My noble friend was being rather critical of the local authorities but they were presented with a very difficult problem at very short notice.
Baroness Butler-Sloss
The local authority has the obligation under the 1989 Act to accommodate children, so there are no financial implications that I understand. The only financial implications would be if the local authority were involved in care proceedings, when it would have to pay for the applications.
Baroness Butler-Sloss
They do it already. There is no difference. They have a requirement under the Act to accommodate. They have had that since 1989, or since 1990 when the Act came into force. I am talking about giving them a parental responsibility order, which is a wake-up call and has nothing to do with finances at all.
Baroness Butler-Sloss
I thank all noble Lords for their contributions. Perhaps I should have said earlier that this was a probing amendment. I see disadvantages in local authorities having parental responsibility, but I never suggested in the amendment that they should hold it exclusively. It would be similar to a care order, where the local authority and the parents share parental responsibility. There is no suggestion that it should be a sole responsibility.
It is important to recognise that asylum-seeking children are not necessarily trafficked. I am talking about a relatively small number of children, in the hundreds, but they are the most vulnerable children coming in from outside.
Baroness Northover
Perhaps I should clarify my comments to the noble Earl, Lord Listowel. He suggested that local authorities, because they are dealing with large numbers of asylum-seeking children, were therefore not dealing with trafficked children. I simply wanted to place that in the context that the numbers there are dropping. In case I caused any confusion, perhaps I can clarify what I was saying.
The Earl of Listowel
Just to clarify my position, I was simply using that as an example: that occasionally local authorities are overburdened for one reason or another and we need to support them as far as possible to meet those needs.
Baroness Butler-Sloss
I am talking about a very specific group of children. Some trafficked children may seek asylum, but that is a completely different matter. I am talking about children who have through the NRM been positively identified as trafficked or are going through the process of identification—one or the other. I am not talking about children who might possibly be trafficked but who have not yet gone through that identification.
The reason for tabling the amendment was as a wake-up call to local authorities. I totally understand the extent to which they are overburdened and underresourced—I said that—but this small group of children is slipping through the net. I was delighted to hear what the Minister had to say about missing children, because there is a serious lack of data from local authorities on children who go missing. They ought to be able to identify what sort of children they are. Are they the children who keep going missing from children’s homes? We know that there are children who go missing three, four or five times a week. That is not the sort of child we are talking about. The group we should worry about is the child who goes missing and is never identified again as a child who was in a children’s home or a foster home. Local authorities do not even know. They have to get their act together to know that those are trafficked children.
I welcome the opportunity to discuss that further with the noble Baroness. I have no doubt that the group of which I am a co-chairman would very much like the opportunity to do that, particularly the chairman of the Human Trafficking Foundation, Anthony Steen, who was previously an MP who worked tirelessly for this cause. This children issue is one that we are truly concerned about. I very much welcome what the Minister said and I am happy to withdraw the amendment.