Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Monday 11th July 2016 Grand Committee

[Lord Ramsbotham (CB)]

My Lords, I am aware that my noble friend Lady Meacher and others have indicated their intention to oppose the proposition that Clauses 12 and 13, to which my amendments in this group refer, should stand part of the Bill. In advance of that debate, I will offer a brief explanation of what my amendments are designed to ensure.

Amendments 105 and 107 are linked to Amendment 135, which was tabled on Monday by my noble friend Lady Howarth of Breckland, in that they relate to a specific recommendation in the recent UN Rights of the Child report that the United Kingdom should ensure automatic review of child deaths in institutions. Amendment 105 is a description of what is meant by a place of detention, to which Amendment 107 refers. If my amendments are accepted, Amendment 105 should appear in new Section 16B(9), after Amendment 107, which will appear in new Section 16B(8) —to thoroughly confuse the Committee.

Like my earlier Amendment 92A, Amendment 109 is designed to bring existing statutory guidance into primary legislation. Noble Lords will recall the very disturbing footage of the physical and emotional abuse of children in Medway Secure Training Centre broadcast in a BBC “Panorama” programme in January of this year. The Ministry of Justice’s usual response to such allegations is to convene an in-house National Offender Management Service panel, which is not the same as a national Child Safeguarding Practice Review Panel.

During my time as Chief Inspector of Prisons, this was exemplified by the refusal of successive Home Secretaries to allow judicial review of the circumstances leading to the murder in Feltham of a young prisoner, Zahid Mubarek, by a known racist psychopath, until ordered to do so by the Law Lords then sitting in this House. This resulted in 78 recommendations for future improvement, plus the naming of 28 individuals who had failed in their duty—serious matters that might otherwise have remained hidden. Both incidents show why it is so important that the new arrangement, and this legislation, should include children in places of detention.

Amendment 109A is designed to ensure that concerned individuals and organisations have a channel through which to share significant information. The amendment allows for boundaries for public notification to be set by statutory guidance in order to protect the national panel from inappropriate referrals.

Finally, Amendment 110 clarifies that a regulated setting, in respect of a local authority’s duty to notify the Child Safeguarding Practice Review Panel of a child’s death, includes places of detention, as listed in Amendment 105. I beg to move.

[Baroness Walmsley (LD)]

My Lords, my Amendment 106A is in this group. It was Amendment 108 but for some reason has been retabled. The arrangements for the national review panel appear to omit its opportunity to review cases of serious mistreatment and/or physical injury caused by restraint in youth custody institutions or other kinds of institutions. This amendment makes it clear that these cases should be looked at by the panel because they raise serious issues of national policy and practice. I do not think that it should be restricted to just deaths in custody, as suggested by my noble friend Lord Ramsbotham, although I fully support what he said about that.

The noble Lord, Lord Ramsbotham, referred to the BBC “Panorama” programme about the Medway Secure Training Centre. Reports obtained through Freedom of Information Act requests reveal that children in custody suffered serious physical injuries following restraint on three separate occasions in 2013-14 and on four separate occasions in 2014-15. As the noble Lord, Lord Ramsbotham, mentioned, Ministers will often refer to the National Offender Management Service. But that is not a safeguarding panel. One of 10 recommendations made by Her Majesty’s Inspectorate of Prisons, following its review of the new system of restraint in child custody, urged more effective independent oversight of restraint by local safeguarding children boards and local authorities.

The Government have tabled an amendment to abolish LSCBs, which makes it even more important that this new arrangement of a national panel includes harms to children in custody and other institutions, not just deaths. This matter is of a very serious nature and is not really suitable for review at local level. The children in these institutions are often not located in their home authority, so it is essential that the new national panel looks at these cases—unless, of course, these clauses do not eventually stand part of the Bill, which will be debated later.

[Baroness Meacher (CB)]

My Lords, I must first apologise that I was unable to be present when my opposition to Clause 11 was debated. Unfortunately, I have a serious family health problem which has prevented me from being present or even doing any work on this Bill until today, I have to confess. I will speak briefly to oppose the proposition that Clauses 12 and 13 should stand part of the Bill. I assure the Minister that the aim here is not to have the clauses struck out but to provide an opportunity to explore the implications of the two clauses as they are worded and to enable noble Lords to raise any general concerns ahead of Report.

I recognise the need to establish a stronger statutory framework that will introduce greater accountability for the three key agencies involved in safeguarding children—local authorities, the local police and the local health service, as proposed by Alan Wood—though I understand that there are concerns that other services should also be incorporated. However, the single purpose of a new framework, as made clear in new Section 16B(2), is absolutely rightly specified as,

“to ascertain what (if any) lessons can be learned from the case about the way in which local authorities or others should work to safeguard children”.

I hope we can explore how, in drawing out and disseminating the lessons from tragic events, we as a society can avoid increasing the blame culture, which has affected social workers and other public servants so severely in recent years. If we do increase the blame culture, the risk is that good social workers and other public servants will walk away from their jobs, as many public servants have done in recent years; others will simply not take up these professions; and the net result will be that the risks to children will increase rather than diminish. I know that that is absolutely not what the Government want to achieve—but there is a very serious point here, which I hope the Government will take on board.

If a social worker working with a family where a child unfortunately dies or is severely injured does fall short in some way, it is surely a matter for that social worker’s managers. It should not be a matter for national politicians and a national panel—whose role, as the Bill makes clear, must be solely to ensure that lessons are learned and disseminated. At a national level, the worst of all this is what happens when the media get involved—and they will get involved: they just do. That can wreck the lives of front-line workers to the point from which, to some degree, they never recover. I really do believe that it is that bad.

The review will of course need to establish whether any failings were a reflection of procedural issues, system failures or a lack of adequate resources. All of that is right and proper, but somehow we need to protect the individuals, not from proper disciplinary action or whatever is appropriate but from this national glare and utter devastation of their lives. If they have made an error, they probably did not intend to. So we have to get this right. It is terribly important that we do and I do not believe that the wording in the Bill achieves that at the moment.

Subsection (4) of new Section 16B inserted into the Children Act 2004 by Clause 12 requires the panel to publish the report on supervised child safeguarding in practice reviews. Alternatively, subsection (5) states:

“If the Panel consider it inappropriate to publish the report, they must publish any information relating to the lessons to be learned from the case”.

Is it really ever necessary or appropriate to publish a whole report on a specific case, which would inevitably involve publishing material about an individual front-line worker? The only national interest is in the lessons to be learned—the material that would be published under subsection (5). So I would welcome the Minister’s view as to whether subsection (4) could be deleted from the Bill. This would focus the minds of members of the panel on their sole role. It would also go some way to reassuring front-line staff that the Government are not aiming to focus national media and political attention on blaming an individual front-line worker. That is the key point that I hope we can think about in relation to these clauses.

My other point is a concern of the Local Government Association that the national panel, as outlined in the Bill, is too closely controlled by the Secretary of State. Again, this risks politicising the serious case review process, and the concern is again for the protection of front-line staff. But it is also very important to ensure that all the lessons are learned from these reviews, so it is absolutely vital that these reviews are seriously and really independent of government control. A review may need to comment on the impact of national policies on safeguarding failures and make recommendations for policy reform as well as procedural changes that are needed.

The Government have tabled Amendment 114, which risks placing too great an emphasis on the actions of individual practitioners in determining the cause of failures. We need to maintain the systems approach that we have had when undertaking these reviews. A focus on an individual’s failure in a particular area will have no relevance to the authorities in other parts of the country. Will the Minister look at the wording of Amendment 114 with this concern in mind?

The NSPCC has questioned whether it is right to limit the role of the national review panel to those cases that involve a death or serious injury, as raised by the noble Baroness, Lady Walmsley. With the focus clearly on lessons to be learned, it may be important to include cases involving near misses or areas where a lot of children have suffered some harm. It may help to clarify that in the Bill.

Finally, it seems important to clarify further the dissemination activities that will be required of the panel. Somehow this business of learning the lessons seems to be somewhat skated over. The Bill needs to make absolutely clear how this country will learn from these serious cases. That is what the panel needs to do.

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[Baroness Walmsley]

For the sake of an accurate record, may I point out that Amendment 108, referred to by the Minister, was retabled as Amendment 106A?

The noble Lord suggested that the national panel would have the discretion to choose whether to investigate situations such as those described in my amendment involving,

“harm caused by unlawful or abusive restraint in any institutional setting”.

If we eventually have a national panel, this is exactly the sort of situation they should look into, because it is a matter of national policy and because children in such institutions come from a range of different local authorities. Despite the guidance, very often they are not located in their home authority. My point is that these cases should be investigated by the national panel on all occasions; it should not just be left to its discretion.

[Lord Ramsbotham]

I am grateful to the Minister for his carefully considered response. I just hope that between now and the next time we meet, there will not be a fourth huge volume of government policy for us to consider during the passage of the Bill. I am sure it is very reassuring to think that the Department for Education is producing all this stuff, but I must say that it would have been helpful to have had it before we began our deliberations, rather than having it fed in during Committee.

When the noble and learned Lord, Lord Mackay, was speaking, I could not help but reflect on my hopes when we introduced the corporate manslaughter legislation. I hoped that it would provide the stick to make certain that the outcomes of such investigations were taken seriously. But nothing has yet happened to bring corporate manslaughter charges against the managers under whom these unnatural deaths have taken place. It is something that is worth considering.

I was going to comment on my noble and learned friend Lord Judge’s remarks in the discussion on Clause 15. But, as the noble Lord, Lord Watson, mentioned his comments on the regulation, I will repeat what I said at Second Reading. I quoted the noble Baroness, Lady Smith of Basildon, who, during the debate on the balance of power between the Government and Parliament, said of this Bill that there were,

“more provisions for the Secretary of State to use regulations than there are clauses in the Bill, including on issues that should be considered matters of significant policy”.—[Official Report, 9/6/16; col. 860.]

I also quoted my noble and learned friend Lord Judge, who, in addition to making some devastating comments about the increasing number of Henry VIII clauses in current legislation, highlighted the number of them in this Bill and asked,

“when are we going to actually achieve something before our ... arrangements disappear into some vague unknown future?—[Official Report, 9/6/16; col. 875.]

I must admit that I am extremely alarmed at the number of them in the Bill, not least because the impact assessment on the Bill states:

“The Bill’s contents have been reviewed and ruled out of scope for the regulatory impact assessment exercise”.

To my mind, nothing could be more inappropriate because the regulatory impact assessment really needs to be carried out in spades on this Bill, as many noble Lords have said.

I am grateful to the Minister for offering his meeting on the national safeguarding panel, to which I look forward. In the meantime, and until Report, I beg leave to withdraw my amendment.

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[Lord Warner]

I will speak to Amendment 130 in my name and that of the noble Baroness, Lady Walmsley. I will also speak to the proposed deletion of Clause 15 from the Bill. Rather unusually, I would prefer that Clause 15 were removed from the Bill altogether than that the Government accept the amendment in my name and that of the noble Baroness.

Given the widespread concern outside this House that the noble Lord, Lord Watson, has already mentioned, we need to understand much better than we do at the moment why the Government are so keen to have this sweeping power in Clause 15. I find the underlying premises of Clause 15 extremely strange—even more so than when I spoke about the clause at Second Reading. First, the clause seems to presuppose that in some way legislation is blocking the delivery of good quality children’s services. There was an opportunity to explain these alleged blockages in the Minister’s latest document, Putting Children First but, on a quick read, I cannot see that that opportunity was taken except for some rather generalised remarks about testing “deregulatory approaches” and a quote from Professor Eileen Munro about “unnecessary legal rules”. But my understanding is that in her review of child protection, Professor Munro was not arguing for changes in primary or even secondary legislation, but for amendments to statutory guidance. Will the Minister clarify what the primary and secondary legislation blockages are, preferably in writing to all members of the Committee before Report?

To compound the confusion, I understand that the Government have already used existing statutory power to amend statutory guidance following the Munro review by issuing directions to particular local authorities. Ofsted’s annual report shows local authorities adopting innovative practice without the need for changes in legislation. Moreover, as the noble Lord, Lord Watson, mentioned, the Government’s very own Red Tape Challenge, as it was called in 2014, seems to have revealed very little to remove for children’s services. Again, will the Minister clarify that, preferably in writing? So far, the Government have produced no evidence that primary or secondary legislation is impeding innovation in children’s services. They already have plenty of scope for amending statutory guidance or issuing directions to particular local authorities without the wide-ranging power to repeal or modify children’s social care requirements in Clause 15 that would last, I understand, for at least six years.

One is entitled to be a little suspicious about what the Government are really up to with Clause 15. Of course, I am the sort of chap who takes for granted that Ministers are well intentioned when they bring measures before your Lordships’ House, but could it be that what lies behind this provision is a short-cut way of outsourcing whole chunks of services? Ofsted seems to be claiming that up to 25% of children’s services are inadequate. Rather than working with some external turnaround capacity to improve matters, is there a new-found enthusiasm within DfE for trying to get quicker results by removing legislative impediments to outsourcing?

Personally, I have no particular objections to outsourcing if that can be shown to have a beneficial effect for children after trialling. I have been trying to probe what the DfE is up to with the transfer of children’s services to trusts. On the answers that I have received, this is clearly an expensive process, it can be very time-consuming, accountability can become extremely blurred and at present there is no body of evidence to support it as a general remedy for failure. Moreover, the DfE has still to publish the report that it commissioned in 2014 from LaingBuisson into developing capacity and diversity in the provision of children’s services. I know from my involvement in that work that it did not suggest that creating a market in children’s services would be easy.

I turn briefly to Amendment 130, which would require the Secretary of State to set up an independent review panel to consider whether any exemptions or modifications under Clause 15(2) are likely adversely to affect the legislative safeguards or rights of children approved by Parliament and to consider the published advice of such a panel before acting. I consider this the least that we should do if the Government persist in proceeding with Clause 15. To sum up, we need much more transparency and clarification from the Minister on why the Government need Clause 15 and why they cannot use their existing powers of direction and statutory guidance to secure their espoused innovation objectives.

[Baroness Walmsley]

My Lords, I support the noble Lord, Lord Warner, in arguing for this amendment. If these clauses eventually remain in the Bill, which is in considerable doubt, although I will leave it to my colleagues to argue that case, it is vital that children’s rights and entitlements are not diminished in the process. These clauses, to my mind, fundamentally undermine rights that have been enshrined in children’s social care legislation following intensive debate in Parliament. They are to be removed at our peril. However, given that some local authorities have seen an 82% increase in the number of children in need between 2010 and 2015, at the same time as local authority budgets have continued to decrease, there is a danger that these new powers might be seen as a way to save money. However, undermining children’s basic rights should not be the penalty for innovation. Many local authorities have vastly improved the service that they give to vulnerable children by trying new things without seeking any exemptions from the children’s rights.

The noble Lord, Lord Warner, mentioned Professor Eileen Munro. He is quite right that she never suggested that we needed to repeal primary or secondary legislation; she just asked for less onerous guidance. Innovation has been done effectively through waiving statutory guidance in some authorities. Importantly, outcomes have been monitored and reported on and it is from such reports that lessons are learned. That is the way forward.

I question the necessity for this part of the Bill. In particular, I want to ensure that the Secretary of State can be assured by independent experts that the benefits to children’s rights will be greater than the risks. The key word here is independent because, according to the Bill, the only people who have to be consulted are the Chief Inspector of Schools and the Children’s Commissioner. I point out that both of them will already have been appointed by the Secretary of State. Although I have every respect for the current incumbents of those offices, we need more independence than that. That is why I support this amendment. Innovation should be encouraged within a framework of fundamental rights and entitlements within the law.

[The Earl of Listowel]

My Lords, before speaking to my amendment in this group I make clear that I support those noble Lords who call for the clause to be removed from the Bill. This is not the time to erode the rights of vulnerable children. As the noble Baroness, Lady Walmsley, said, we are facing a period of austerity. The Chancellor of the Exchequer has just removed his target to pay down the deficit by 2020 but we should certainly not think that that is the end of austerity; we can expect it to extend for many years to come. Unfortunately, that means that local authorities will continue to have severe downward pressure on their budgets, so I share the noble Baroness’s concern that whatever the good intentions of this clause, it might result in cutbacks on protections for children in order to save money.

The purpose of my Amendment 131A is, where a local authority has been exempted, to enable a child, his advocate or a professional to ask for the exemption to be released for that child. For instance, if the responsibility for putting in place an independent reviewing officer was removed, a child could, if he decided to do so, call for an IRO to be instated. The Minister referred to the role of IROs at Second Reading.

I draw your Lordships’ attention to research by the National Children’s Bureau. It has found that the area in which the IRO service has been seen to make the biggest difference is in ensuring timely reviews of the care plan. Nationally, the survey found that that was where IROs were perceived to have made the greatest difference, with 91% of IRO managers, 82% of IROs and 72% of directors of children’s services strongly agreeing that, since 2011, IROs have contributed to the timeliness of reviews. Another area in which IROs are seen to have had an impact is in ensuring that the care planning process remains firmly focused on the child and that the child’s wishes and feelings are taken into account. Nationally, the survey found that 90% of IRO managers, 72% of IROs and 73% of directors of children’s services strongly agreed that, since 2011, IROs had ensured that children’s wishes and feelings were recorded and taken into account.

Amendment 131B would ensure that there is excellent parliamentary scrutiny should Clause 15 continue to be in the Bill. Major voices from the children’s sector have been clear that innovation is necessary to ensure, in the face of increasing risks and challenges, that the sector can learn and improve. Like many, I share the concern of all the major children’s charities that the right safeguards should be in place to ensure that innovation is overseen properly and delivers for children and families without disruption to their lives. Such scrutiny is essential and should not be overridden. Local authorities should not be exempted from laws that have been developed and scrutinised with care and attention by both Houses without a comparable amount of parliamentary oversight of the potential impact of any exemptions. That is what the amendment seeks to achieve.

The amendment would ensure that only laws subject to the negative resolution procedure in their formation could be overridden by the same process. Whether in the process of seeking to innovate to improve services for children or otherwise, it is not appropriate or democratic that regulations introduced through a debate and vote in Parliament should be exempted without such a process. Our job is to hold the Government to account, and we should not be prevented doing so. It is imperative that our powers to scrutinise the safeguards needed to protect children from the impact of any exemptions are not disrupted by the desire to innovate to improve outcomes for children.

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[Baroness Walmsley]

Before the Minister replies, would he reflect on the fact that those of us who came to the meeting last Thursday were given what the noble Lord, Lord Hunt, is asking for—three examples of where local authorities would have liked exemptions—and that we were not convinced by any of them? In every case, we could think of another way in which that difficulty could have been got around by a creative local authority in order to produce better outcomes for children, and of course there is no other excuse for doing it. We really were not convinced.

[Lord Warner]

I really must help to reinforce this message to the Minister, because from what he has said so far he does not seem to get it. What we need, in writing, are the primary and secondary legislation blockages that are stopping innovation and why in those cases you cannot use the Secretary of State’s power of direction or an amendment to the statutory guidance. That is the issue, and he has not come anywhere near tackling that proposition.