A Failure of Implementation (Children and Families Act 2014 Committee Report)

Baroness Tyler of Enfield Excerpts

Wednesday 6th September 2023 Grand Committee

Moved by

[Baroness Tyler of Enfield]

That the Grand Committee takes note of the Report from the Children and Families Act 2014 Committee A Failure of implementation (HL Paper 100).

[Baroness Tyler of Enfield (LD)]

My Lords, it is a real pleasure and privilege to open this debate. The purpose of the Select Committee’s special inquiry, which I had the honour to chair, was to conduct post-legislative scrutiny on the Children and Families Act 2014, a seminal and wide-ranging piece of legislation. I declare my interest as co-chair of the All-Party Group for Children and my former interest as chair of Cafcass.

I start by thanking a number of people: my fellow committee members for all their highly insightful contributions; our excellent clerks, Theo Demolder and Christopher Clarke; our policy analyst, Sarah Jennings, who stepped up magnificently when Theo moved on; and our operations officer, Matteo Garelli, for whom no task was ever too much effort. I also thank Louise Shewey, our communications officer who was involved throughout, not just at the end. Finally, I thank our two special advisers, Professor Rob George and Professor Julie Selwyn.

The Act was envisaged as a landmark piece of legislation, giving greater protection to vulnerable children, including those being fostered and adopted; better support for children whose parents were separating; a new system to help children with special educational needs and disabilities; and help for parents to balance work and family life. Given the breadth of the Act, the committee focused on areas that we felt would be most likely to benefit from further scrutiny—principally adoption, family justice and employment rights.

One area we looked at which we felt was missing from the Act was mental health, because when those systems that I just mentioned fail, it is children’s mental health that suffers. I hope that other colleagues will focus on that in the debate today. We also looked briefly at special educational needs but, to ensure that our insights could feed into the SEND Green Paper, we sent a letter to the Government in May setting out our concerns, well before publication of the main report.

So how did we go about our work? We took oral evidence from 44 expert witnesses and received more than 150 written evidence submissions. Above all, however, we wanted to hear directly from members of the public who might not otherwise take part in Select Committee inquiries. We visited a school and a SEND centre. We spent a day at the court in Oxford and an afternoon at the Maudsley Hospital in Camberwell. We held round-table discussions with birth parents, adoptive parents in Yorkshire, young people with experience of the family justice system and people working in mental health, as well as conducting an online survey.

Our reluctant conclusions were that, despite the admirable intentions of those who worked hard to get this Act on the statute book, the sheer breadth of the areas covered by the Act, a lack of any real focus given to implementation and a lack of joined-up action at all levels—compounded, I must say, by incessant churn by government—have contributed to too many children and their families feeling let down by the systems, resulting in poor SEND services, increasing mental health referral waiting lists and ever-growing delays in family courts. In short, we felt that it was a missed opportunity.

We concluded that much of the legislation had, frankly, sat on the shelf and languished as a result of that lack of focus on implementation, poor or non-existent data and inadequate monitoring of the impact of the Act to see how well it was working, hence the title of our report. In my view, it was not until our inquiry was established that the Government gave any thought to a comprehensive post-legislative review of the Act, eight years after it received Royal Assent. After pressing, we finally received a post-legislative memorandum, despite the Government’s public commitment to produce such a memorandum three to five years after an Act receives Royal Assent. Eight years is a long time in the crucial early years of a child. Post-legislative scrutiny, by either the Government or Parliament, is not just a “nice to have”; it is crucial to ensure that legislation is achieving its goals, providing value for money and improving people’s lives.

Why is it that we spend so many hours doing line-by-line scrutiny of legislation but next to no time following through to see whether implementation has happened and has worked? I cannot help feeling that we have the balance badly wrong. This is a wider point about how we govern and the purpose of legislation, which is way above my pay grade, but I hope that those in positions of power will reflect on how post-legislative scrutiny can be taken more seriously and not viewed just as a “nice to have”. There is so much more that government and Parliament could do.

Our report made a number of specific recommendations on how the Government could realise their ambitions contained in the Act across adoption, family justice and employment rights. I shall briefly go through some of the main ones. They included establishing an outcome-focused taskforce, accountable to the Secretary of State and dedicated to addressing the unacceptable ethnic and racial disparities in the adoption system; reinstating the statutory national adoption matching register on its original terms, working with commercial service providers to build a more functional platform which combined the usability of existing services with the matching support and referral requirements of the statutory register; improving post-placement support for adopters and kinship carers, including the expansion of the Adoption Support Fund, allowing it to be used for more than therapy and ensuring that it is focused also on early intervention; and developing a safe and modern digital contact system for post-adoption contact. The committee felt strongly that the failure to modernise contact threatens to undermine the adoption system.

The report also recommended: addressing the ever-growing delays in public family law cases, which began in 2017, long before the pandemic. The latest data shows that the 26-week target now stands at 46 weeks, which is a huge issue of concern. That requires improved data gathering and sharing, and top-level leadership of a fragmented system through the Family Justice Board. Other recommendations were: producing an impartial information website for separating couples, providing clear guidance on the family justice system and reconsidering proposals to make mediation obligatory, replacing the current MIAMs and the mediation voucher with a universal voucher scheme for a general advice appointment; reviewing the current approach to empowering the voice of the child in family law proceedings, including recommending that the Family Justice Council reviews the guidance setting out the approach to judges meeting with children; and creating an ambition to move towards a new, dedicated 12-week parental leave allowance and making flexible working a day-one right to request. On the latter, I am pleased to say that the Government committed to that on the very day our report was published. Finally, we urged the Government to improve their systems for monitoring and assessing the implementation of legislation, particularly by robust data sharing and collection. I very much hope that other committee members today may be able to focus some of their remarks on some of these quite disparate issues.

I will say a quick word on special educational needs, which was not one of our main areas of focus but came up repeatedly in our engagement activities. Part 3 of the Act reformed the law on support for children and young people with special educational needs or who are disabled. It was intended to reduce the fight families faced to get the support their children need and to deliver integrated support across education, health and social care. The legislation received a great deal of detailed scrutiny, and it was widely supported. The consensus is that it remains the right legal framework. Sadly, however, the reality of implementation has not matched the ambitions of the legislation—a key theme of our report. At the time, the Government said that the test of the reforms working would be a reduction in the number of appeals to the tribunal. However, the opposite has happened: tribunal numbers have soared, and in the vast majority of cases, the tribunal finds in favour of the parent. I cannot help reflecting that the fact that there have been seven different Children’s Ministers since the review was launched in 2019 is relevant here. Last year, the Government published a new Green Paper on SEND, and this year followed that up with an improvement plan. Could the Minister give me an update on what has happened since that plan was published?

Finally, we also looked at some critical cross-cutting issues, including mental health, early intervention, data collection and data sharing. On the latter point, the Health and Care Act 2022 introduced significant improvements to information sharing between health and adult social care. I had hoped that the Government’s recent review of children’s multiagency information sharing would achieve parity for the children’s system, but I do not believe it has. The report does not go far enough to address the distinct barriers faced by children’s health, social care and other key partners, nor does it set out a clear policy on a consistent child identifier, which I find very disappointing. It is crucial that government moves forward with pilots of the NHS number as a consistent child identifier as soon as possible. Will the Minister agree to meet with me and other interested Lords on this issue?

The Government’s response was published on 6 February; I thank Ministers for that. The committee’s report contained 24 conclusions and 17 recommendations. Overall, the Government broadly agreed with many of the committee’s findings but rejected many of our specific recommendations. In doing so, they often pointed to existing interventions and policy measures which they deemed sufficient to address the committee’s concerns. I found this really disappointing after all the effort the committee had put in.

Finally, I turn to some specifics. Can the Minister give me an update on a few issues that were left vague in the response? In particular, when will the Government next publish data on the time it takes for ethnic-minority children to be adopted? What are the results of their reflections on what more can be done to ensure that the Family Justice Board is as effective as possible, including the committee’s recommendation that there should be a senior independent chair? When can we expect to see the final report of the Government’s review of the presumption of parental involvement? When will the Family Procedure Rule Committee publish a response to its consultation on early resolution of private family law arrangements?

The Government’s response placed a strong focus on their new children’s social care implementation strategy, entitled Stable Homes, Built on Love, published in February in response to The Independent Review of Children’s Social Care. It stated that the strategy contained ambitious plans to take forward and build on the Children and Families Act, including issues raised by the Select Committee report that required further examination. I hope we will see that in practice.

It is perhaps worth remembering that the independent review called for the immediate investment of £2.6 billion to address the existing crisis in children’s social care and a revolution in family help to prevent children entering care where possible. Yet more than a year later we seem little further forward on this reform and the Government are currently set to spend an additional £1 billion on children’s social care over 10 years.

Finally, the Government’s “test and review” approach to reforms is unlikely to lead to the level of investment and change that the system so desperately needs, so I conclude by urging the Government to reconsider the scope for further investment at the next spending review. We must not allow another eight years to pass before making the improvements that are so desperately needed. I beg to move.

--- Later in debate ---

[Baroness Tyler of Enfield (LD)]

My Lords, I thank the noble Baroness, Lady Barran, for that response. I personally found it extremely helpful and very informative, and I very much appreciated the warm words, which I know were sincerely meant, about the in-depth work that the committee has undertaken, because it does make it feel that that work was worthwhile, so thank you very much for that. I also acknowledge the presence of the noble and learned Lord, Lord Bellamy, which I very much appreciate. It is a really visible demonstration to me of the joined-up nature of the Government on this issue and I thank him for attending.

It has been a really excellent debate; it has really demonstrated the breadth and complexity of this issue, and its importance, but also the huge expertise, knowledge and commitment that we have in this House. I was hugely lucky to work with the colleagues I did on the Select Committee, bringing not just their knowledge but their passion and commitment to this area. We had excellent contributions, which I am not going to try to summarise, in the key areas of adoption and kinship care, how the family courts work, special educational needs and disabilities and employment law. I will say one point only, if I may, about the family courts. I feel very strongly that the voice of the child must be at the heart of the family courts. I am hoping that is something we can continue to work on.

We heard some excellent contributions about the committee’s decision to highlight some very important cross-cutting themes. We heard about mental health, about the need early intervention and the need for really important information collection and sharing—all incredibly important. We heard about one or two more general issues, which was very interesting: the importance of couple relationships, relationship breakdown and the role of family hubs. This is all the broader context within which this report was operating.

I agree that it is important to put on record that I agree that the intentions of the Act were very good. I think the legislative framework was the right one. I called it a landmark piece of legislation, and I meant that. Of course, it is right to acknowledge the things that have happened as a result of it, but I think it is inevitable that when we have post-legislative scrutiny, we look at the things that have not happened—hence the focus we had.

Someone said a very good thing: where you get both political will and pace, the world can change and things can happen. I just hope from this debate that that is what is going to happen—that we are going to unleash some real momentum and change in this area. I know that all noble Lords in this Room would like to be part of that, and I hope we can have further debates on some of these key issues that I have just mentioned.

My final point is to return to the issue about the process of post-legislative scrutiny and why I think it is so important. I managed to have a quick word with the Senior Deputy Speaker earlier and I intend to write to the powers that be—the Leader of the House, the Lord Speaker, and the Senior Deputy Speaker—saying why I feel it is so important that post-legislative scrutiny is really taken seriously and there is so much more we can do, both in Parliament and in government.

Motion agreed.