Children and Families Bill

Baroness Stedman-Scott Excerpts

Monday 14th October 2013 Grand Committee

I hope that the Minister and your Lordships will find this discussion helpful. I look forward to hearing the Minister’s response. I beg to move.

[Baroness Stedman-Scott (Con)]

Amendment 65A seeks to appeal restrictions to Section 8 orders for children in local authority care. At present, legislation which aims to ensure the welfare of looked-after children is not being consistently implemented at local authority level. For instance, Section 9 of the Children and Young Persons Act 2008, states that:

“As far as is reasonably practicable”,

and when “consistent with their welfare”, a local authority must provide accommodation for a child that is “in the authority’s area”, yet in reality one-third of children in care are placed outside their local authority’s area. In the case of residential care, almost half of children are placed outside their area.

Similarly, Section 8 of the Children and Young Persons Act 2008 states that suitable accommodation should ensure that,

“if C has a sibling for whom the local authority are also providing accommodation, it enables C and the siblings to live together”,

yet in a survey by the Children’s Rights Director in 2011, almost three-quarters of children in care reported being separated from their siblings. Young people in children’s homes are most affected with, I am advised, 96% being separated from a sibling. Noble Lords will agree that the current situation is unacceptable, yet there is little recourse at present for looked-after children to enforce their rights.

Independent reviewing officers are supposed to intervene if a child's views and welfare are not being taken into account in care planning, and have the power to report cases to CAFCASS, which reports to the family courts. However, this rarely happens in reality. Between 2004 and 2011, independent reviewing officers reported only eight cases to CAFCASS. Independent reviewing officers seem to lack the time, independence and legal expertise to properly ensure children’s rights are not breached.

Similarly, the complaints procedures available to looked-after children are both too lengthy and insufficiently robust to make a difference in serious cases. A survey by the Children’s Rights Director in 2012 found that over one-third of the looked-after young people surveyed said that making a complaint made no difference at all to their situation and over one-fifth said it had made it worse.

Finally, children in care already have access to legal action through judicial reviews for very serious cases. However, while judicial reviews are superior to complaints procedures and IROs as they are truly impartial, robust and fast enough to make a real difference, there are also limits to their effectiveness. First, they can question only the way a local authority has made a decision, not the decision itself. Secondly, judicial reviews are an extremely expensive way of enforcing rights, costing upwards of £30,000. Given the economic climate we are in, it is increasingly unlikely that judicial reviews will continue to be an option for looked-after children. Thirdly, they happen after the event and usually after significant harm has been sustained.

However, there is an important legal right that looked-after children are denied, which could provide them with a means to prevent local authorities acting against their interests. As I am sure noble Lords are aware, Section 8 orders such as contact, prohibited steps and specific issue orders enable children to prevent their parents taking actions that are against their best interests. If a parent attempts to prevent a child seeing a family member or tries to move the child away from their home, the child may, through their solicitor and if that legal representative considers there to be sufficient grounds, ask a court to make a Section 8 order. Though rarely exercised or indeed necessary, the right to do this is a crucial protection for children in difficult situations.

However, at present, Section 9(1) of the Children Act 1989 states:

“No court shall make any section 8 order, other than residence order, with respect to a child who is in the care of a local authority”.

This is a gross inequality for looked-after children, denying them the same rights available to all other young people. Opening up Section 8 orders to looked-after children would give them a clear and direct means of redress if a local authority is acting against their interests and welfare. For instance, a child threatened with an unnecessary move far away from home could ask a court to make a prohibited steps order. The threat of legal action would also provide a clear incentive for local authorities to implement existing policy concerning looked-after children and act in their best interests. The paramountcy principle is enshrined in the Children Act 1989; importantly, this will be driven not by government but by the people whose lives are most affected.

It is not envisaged that large numbers of looked-after children will approach courts to make Section 8 orders against local authorities. However, for those in very serious situations where such legal action is appropriate, this will be an enabling right which could make all the difference. The potential gains of opening up Section 8 orders are very great. By allowing young people to seek help from a court to prevent local authorities acting against their interests we could prevent many disruptive placement moves, which have such a harmful effect on the outcomes of children in care. Opening up Section 8 orders would enable prevention of harm rather than simply redress after the event. It is a vital early intervention measure and this proposal will be an historic step forward for the rights of children in care. I look forward to hearing the Government’s response.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, in responding to Amendments 27 and 28, I pay tribute to the long-running commitment of the noble Earl, Lord Listowel, to improving the lives of our most vulnerable young people by ensuring that their voices are heard. As my noble friend Lady Walmsley said earlier, it is only if we listen to children in the child protection system and those who come into care that we will ensure that they are being effectively supported and safeguarded. In particular, children in care need to be able to challenge and influence strategic planning as well as day-to-day decisions taken about their lives.

For those in the child protection system, the revised government guidance Working Together to Safeguard Children makes it clear that the child’s needs are paramount and that children need advocacy as part of an effective child protection system. The Department for Education has also worked with the office of the Children’s Rights Director on the publication in August this year of the Young Person’s Guide to Working Together to Safeguard Children. This highlights that in child protection conferences and the child protection process children should be listened to and supported, including by being able to ask for an advocate to help them put their views across. To quote from it, social workers,

“should ask your views so that you can have your say on what should or should not be in the child protection plan. Remember, you can ask for an advocate to help you do this, if you want”.

I believe that the guidance strikes the right balance of clarity over statutory responsibilities, while allowing local authorities and professionals to develop professional practice in the best interests of children. I feel that guidance rather than primary legislation is the most appropriate vehicle for promoting advocacy support for children.

While advocacy can help and benefit some children, sadly one of the concerns highlighted in recent, tragic cases is that the social worker and other front-line professionals have sometimes not done enough to seek the views of children at the assessment or the child protection inquiry stage. I would not want at this stage to detract from the important responsibility of professionals to listen to the child by introducing in legislation an additional person with this responsibility.

I turn to advocacy for looked-after children. The Children and Families Minister meets regularly with groups of children in care and separately with care leavers. We recognise that many of them say that they do not have access to advocacy services and that, as the noble Earl said, provision is patchy. That is why the Government, as part of our commitment to improving advocacy services, have doubled the funding to them from £150,000 to £300,000. This year, we are supporting both the National Youth Advocacy Service and Voice to provide an advocacy service for looked-after children and care leavers. The services will include information and advice via telephone, enabling young people to access and obtain advice when they want it, and the allocation of an independent advocate to support and represent young people when they want it.

We do not think that further legislation in regard to the role of advocacy in children’s reviews of their care plans is necessary. The Government have already strengthened the role of the independent reviewing officer to give due consideration to the wishes and feelings of the child when making decisions with respect to the child. It includes a specific duty to ensure that a child understands how an advocate could help to support them at their care plan review meeting. We recognise that even more needs to be done, and that is why we are working closely with the advocacy sector and Children in Care Councils to enable all children to know their rights to have an advocate.

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[Lord Nash]

I hear what the noble Countess, Lady Mar, says. They should be consulted and Ofsted should inspect that again. However, we will write to the noble Countess on this matter.

[Baroness Stedman-Scott]

I thank the Minister for his response to my amendment and I am delighted that he acknowledges the spirit behind it. I believe this to be worthy of more discussion, and I know that his officials have already promised that. On that basis, I shall not be pressing the amendment.

[The Earl of Listowel]

I also thank the Minister for his response. It seemed to me very sympathetic and reflected the very positive attitude of this Government towards the idea of advocacy and hearing the voice of the child. I saw that reflected in the practice of Edward Timpson MP when he was chair of the all-party parliamentary group on young people. I believe that he still regularly meets groups of young people in care—groups of younger and older people—as well as care leavers. I think that this sort of approach will make a huge difference to policy. If good advocacy can make a difference for one child through having contact with his siblings and the principle is proved that children should have such access, that raises the game for everybody and creates opportunities for other children with similar difficulties.

I was grateful to be reminded of the doubling of funding for advocacy by the Government from £150,000 to £300,000, and I am grateful for the Minister’s consideration of the idea of a handbook. I beg leave to withdraw the amendment.

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[Lord Northbourne]

My Lords, I am not going to make a speech but I strongly support the noble Baroness, Lady Young. The more I learn about and think about disadvantaged young people, the more I realise that the question they are always asking themselves is, “Who am I?”. Their second question is “Am I a person who could succeed?”. Some of your Lordships may remember the two Ofsted reports about schools which were outstandingly successful although the children were from very disadvantaged backgrounds. The three principal things those schools had in common were: outstanding leadership, very committed staff and, thirdly, every child believing that they could succeed.

[Baroness Stedman-Scott]

My Lords, I beg to move Amendment 45, which has three parts.

[The Countess of Mar]

My Lords, I am sorry to interrupt the noble Baroness, but may I suggest that she does not move it at this stage but speaks to it and that she does not move her amendment when it is called? She does not withdraw it at this stage either?

[Baroness Stedman-Scott]

Thank you. This is the first time I have done this. Forgive me, I will start again.

I will speak to Amendment 45, which has three parts. It seeks to ensure that children leaving care have the best possible support into adulthood. I strongly support the points made by the noble Earl, Lord Listowel. If every young person had a personal adviser to take them on their journey from youth to adulthood, our hearts would sing. Indeed, as I said to the Minister on a visit last week, we would think we had died and gone to heaven because of the difference we could make to their lives.

I strongly support Amendment 38, tabled by the noble Earl, Lord Listowel, to allow young people to remain in foster care until the age of 21. This amendment is vital as it gives looked-after young people stability into adulthood and allows them to keep the relationship they have built up with their foster carer over many years. The more support they have, the better the outcome and the more hope for their future.

However, I also worry that this measure cannot provide an answer for all looked-after children, particularly the most vulnerable. For this reason, I have tabled three supplementary amendments. These are probing amendments intended to question inconsistencies in our current policy towards children leaving care.

I declare an interest as the chief executive of Tomorrow’s People. Day after day, young people who have not made that transition come to us. We have to try to rebuild their lives, put them back together and get them on the right path. The cost of this is extensive, whereas if we spent the money earlier it would be better for them and for the country.

I shall speak, first, to Amendment 45A. This would guarantee to young people who make an early exit from care at 16 or 17 the ability to return to a foster or residential care placement if their return home or move into independent living breaks down. At present, the door closes behind care leavers when they exit care early, allowing no recognition that this may be a mistake. It is crucial that we give young care leavers the safety net that all other young people enjoy.

I am aware that under the Children Act 1989 local authorities must already accommodate any 16 or 17 year-old who is homeless. However, at present the law does not require that the accommodation has a supported element. This means that if a young person leaves care at 16, returns to their birth family and the placement breaks down, as an estimated 50% of returns home do, there will be no entitlement to return to foster or residential care. Similarly, if a young person decides to move into independent living and struggles to live alone and manage a tenancy, he or she is likely to be given a place in a hostel or a new flat when what is really needed is a more supported option.

Young people who leave care at 16 and 17 are extremely vulnerable. They are the most likely to have incomplete education, be unemployed, have unstable housing and experience drug and alcohol misuse. I know that the law has previously recognised this fact as the Children and Young Persons Act 2008 states that children should not leave care before 18 unless they are deemed ready by an independent reviewing officer. The logic of this is that if a child is under 18 and not ready to live independently we must continue to support them. For children who have left care and shown that they are not ready to live independently, the same logic must apply. It is not unreasonable that we should try to guarantee these very vulnerable young care leavers the chance to return to a supportive environment.

The second amendment I shall speak to is Amendment 45B. This aims to question how we treat children leaving residential care. Amendment 38, tabled by the noble Earl, Lord Listowel, would extend foster care to 21. While this has received national funding for pilots, had explicit backing from the Children’s Minister and is already in some stage of implementation at local authority level, there has been no mention of what happens to the roughly 2,500 children who exit residential care every year. This is a very vulnerable group of young people with challenging needs. For example, 62% of young people in children’s homes have “clinically significant” mental health difficulties, and 74% of young people in children’s homes have been reported to be violent or aggressive in the past six months. These young people are the most likely to struggle to sustain a tenancy and live independently yet they are also the most likely to make an early move to independent living. Currently, more than half—56%—of children in residential care leave care at 16 or 17 and the remainder will leave on their 18th birthday.

On moving to independent living, they lose both the supported environment and the relationships that they have built up with their carers. It is crucial that we offer children in residential care the same opportunities that children in foster care have to remain supported until 21.