Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Report: 1st sitting: House of Lords
Tuesday 18th October 2016 Lords Chamber

[Lord Nash]

I think we can do that. I am happy to discuss this further with the noble Lord but, as I understand it, we are proposing to list them as conditions and draw practitioners’ attention to them. As I was saying, I am reluctant to do anything further on this in relation to mental health until the expert group has met, but I invite the noble Baroness, Lady Tyler, to meet that group.

[Baroness Walmsley]

I am sorry to interrupt the Minister again, but I would like him to clarify what he was saying to my noble friend Lady Tyler. He mentioned that if the expert group says that the gist of what she is recommending should be in place, the Government will be prepared to legislate. Legislative opportunities being so few and far between, can he assure the House that a suitable vehicle, in the form of a Bill, will be available in this Parliament to achieve that, should the expert group make that recommendation?

[Lord Nash]

I am not authorised to make that assurance or to predict future legislation standing here. However, we have appointed these experts, we know what their direction of travel is and we will listen very carefully to all their recommendations, including on future legislation. Obviously, when I say “future”, I mean that if they make recommendations, we would like to get on and legislate, where appropriate, as soon as possible. However, it would be helpful if the noble Baroness, Lady Tyler, had further conversation with the co-chairs.

Lastly, I thank the noble Earl, Lord Listowel, for his comments about Clause 29. Of course, we are not due to consider amendments to that clause today. The Government have tabled several amendments to address points made in Committee, and I encourage noble Lords to give them proper consideration before we have a full discussion of that clause in some weeks’ time. I am happy to have further discussions on this with noble Lords in the interim; it would be very helpful to discuss this clause in more detail. I also thank my noble friend Lord Faulks for clarifying the point raised earlier by the noble Lord, Lord Lester. I hope and trust that what I have said—particularly on the amendment on the corporate parenting principle—will reassure the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Tyler, and persuade them not to move their amendments.

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[Lord Nash]

My Lords, in Committee we promised the noble Lord, Lord Watson, that we would consider his amendment in Grand Committee to ensure that the current drafting of Clause 4 fully captures those with parental responsibility where the child has left care under special guardianship or child arrangements orders. Following further consideration, the Government have decided an amendment is necessary to Clause 4, and I am grateful to the noble Lord, Lord Watson, for bringing this to our attention—I am rather disappointed that he is not here to hear me say that, but I hope the noble Lord, Lord Hunt, will pass on my thanks.

The amendment will make it clear to local authorities in England that they must make advice and information available to any person who has parental responsibility for a previously looked-after child for the purpose of discharging their duty to promote their educational achievement. Unlike adoption, where only the adoptive parents have parental responsibility, parental responsibility in respect of children named in special guardianship and child arrangements orders may be shared with the child’s birth parent or parents. This amendment is therefore important to ensure that all those with parental responsibility are not excluded.

I would like also to speak to government Amendments 21, 24 and 27, which are technical amendments to Clauses 4 to 6 that will ensure that children who were previously looked after and adopted under the Adoption Act 1976 are also within the scope of the new duty on local authorities and schools to promote their educational achievement. These “older” children will be in secondary education, and they too should have access to the virtual school head and the designated teacher. I hope that noble Lords will accept these government amendments.

Before hearing what noble Lords have to say on other amendments, perhaps it would be helpful to noble Lords, and particularly to the noble Baroness, Lady King, if I say that the Government will table an amendment to the Bill in the other place to bring children adopted from care outside England within the scope of Clauses 4 to 6.

[Baroness Walmsley (LD)]

My Lords, it was my intention to speak to Amendments 22, 23, 25, 26 and 28 in my name and that of the noble Baroness, Lady King of Bow, and other noble Lords. However, I am delighted to hear what the Minister has just said. To explain to other noble Lords who may not be familiar with the effect of these amendments, I should say that they refer to the educational entitlements of children adopted from overseas to make them equal to those of children adopted from this country. I must declare an interest in this subject because I have a much-loved adopted Chinese granddaughter, although she would not benefit from these amendments since she and her family live abroad.

From a peak of 25,000 adoptions a year in the mid-1970s, the number of adoptions fell in England to only 3,000 in 2011. But the new focus on adoption of the previous Government and of the current Government has made a very big difference. The number of adoptions is going up again, and they are extremely resilient, as shown by a certain amount of research. Only 3% of them break down, which is less than those where children are put under special guardianship. In acknowledging the need for the numbers of adoptions to grow, the application has been made easier and shorter. However, before those reforms took place, many would-be adopters turned away by local authorities had to adopt internationally if they were to have a family, particularly if they wished to adopt an infant. A number of international adopters, including my son, would willingly have adopted in the UK but were turned away, sometimes because of their ethnicity.

There used to be a view that children adopted from abroad did not come from the care system in their country. That may have been the case some time ago but that has changed. Indeed, Martin Narey, who had previously claimed that that was so, has changed his mind in view of changes in all those countries. Most of the children come from care in the countries from which they are adopted. That means that they have exactly the same traumatic experiences that children adopted from care in this country have, and therefore they have exactly the same needs. Those children have already benefited from several elements of the adoption support fund, but until today they had not benefited from the educational advantages that were given to children adopted from this country. So I am delighted that the Minister has indicated in what he has just said that he has accepted that those children need the same advantages in education. We are talking about children who are all British nationals, all with a similar experience of neglect and abuse and all adopted from care. The only difference is that in some cases internationally adopted children might also have experienced deeply inadequate medical care and malnutrition in their country of birth, so actually they may be worse off than children adopted from care in this country.

The Minister suggested that amendments would be tabled when this Bill goes to another place, so I look forward to seeing that. That will remedy the fact that we have up to now condemned a very small number of British children who have suffered neglect and abuse to lives much less successful than they might have been. I hope that will now change. I thank the Minister and the noble Baroness, Lady King of Bow, for suggesting these amendments.

[Baroness King of Bow (Lab)]

My Lords, I do not wish to detain the House on this amendment—I will detain the House on a later amendment instead—but I want to sincerely thank the Minister for the excellent news that he has brought. As the noble Baroness said, it is only a small number of British children, but they are British children. As an adoptive parent, however you adopt your child and wherever your child comes from, you expect them to have the same life chances in Britain, because that is, I hope, what Britain is about.

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[Lord Hunt of Kings Heath]

My Lords, I will speak to my own amendment and perhaps come back when we have had a debate on the other amendments in the group. This takes us back to an interesting discussion that we had in Committee about fostering and the risk that fostering will be placed in a lower hierarchical category in relation to the provisions of the Bill. Let me say at once—if the Minister is paying attention—that I welcome the issue of the clause, looking at the long-term needs of the child, and developing a plan that will assess their current and future needs and a permanent plan to meet those needs. We all agree that this clause places these issues at the forefront of decision-makers’ minds when assessing the care plan. Clearly, it is important to ensure that all permanent options benefit from this clause. That is why all options should be written explicitly into the Bill.

What is concerning, particularly to those involved in fostering and the fostering network, is whether we can get clarity in the law to avoid some options, particularly adoption, being seen as more important than others in a hierarchy of care. I do not at all underestimate the importance of the need to encourage more adoptions. I have no doubt that this is the right way to go. But it should not be at the expense of prioritising adoptions over fostering.

A legal framework is in place. A legal definition for long-term foster care was introduced subsequent to the passing of the Children and Families Act 2014. The Care Planning and Fostering (Miscellaneous Amendments) (England) Regulations 2015 amended the Care Planning, Placement and Case Review (England) Regulations 2010 by providing for the first time a legal definition of long-term foster care and setting out the conditions that must be met. This step rightly strengthened the importance of foster care as a permanent option for children and young people in care.

As the Government have placed long-term foster care on a legal footing, the opportunity should be taken in this legislation to include it as a permanent option. The Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review June 2015 includes reference to the range of options for permanence and this could be used as a basis from which to amend new subsection (3B) to reflect the range of options for permanence that already exist in law—all of which can deliver good outcomes for individual children.

In Committee in the House of Lords, the Government said that the amendment would duplicate wording in Section 22C of the Children Act 1989 that sets out how looked-after children are to be accommodated by local authorities. That is something that I would like to clarify with the Minister. The fostering network disagrees with this because it believes that Section 22C(6) of the Children Act 1989 does not mention long-term fostering and the term has no legal meaning prior to the Care Planning and Fostering (Miscellaneous Amendments) (England) Regulations 2015 that I referred to. Section 22C(6) specifies only the range of ways in which a looked-after child may be cared for, including foster placements. It does not focus on permanence. As the Bill stands, Clause 8 is inconsistent with the statutory guidance on permanence planning. My amendment would ensure that all permanence options were recognised with equal status across all relevant primary and secondary legislation. We should bear in mind that currently three-quarters of looked-after children are fostered, so this is an important question.

I understand that I have raised some technical issues, but the core importance of this is the need to avoid a hierarchy of care. In addition to responding to the technical questions that I have raised, if the Minister can say that there is no intention of having such a hierarchy, it would indeed be very helpful. I beg to move.

[Baroness Walmsley]

My Lords, my Amendment 31 in this group would add the child’s wishes and feelings to the list of matters that must be included in the local authority’s Section 31A plan under the Children Act 1989. Permanence has just been mentioned by the noble Lord, Lord Hunt. The permanence provisions of a care plan must be considered by a court before a care order is made—or in some cases not made. The court must additionally consider contact arrangements and the views of parties to the proceedings about contact. The child is a party in care proceedings, so his or her views would be elicited about contact. To ensure that their wishes and feelings are elicited and reported on all aspects of permanence, it is necessary to specifically include this in Clause 8.

The Department for Education has defined permanence as follows:

“Achieving permanence is multifaceted. It requires children to experience not only physical permanence in the form of a family they are a part of and a home they live in but also a sense of emotional permanence, of belonging and the opportunity to successfully build a strong identity. Legal status may also impact on children’s sense of permanence”.

Without an explicit and specific requirement, it would be quite possible for the part of a care plan dealing with permanence to omit the child’s wishes and feelings about the relationships they value, their sense of belonging and stability and their hopes and dreams for the future. This is not to give undue weight to the child’s wishes and feelings or to place unrealistic expectations or pressures on them; it is just to ensure the child’s rightful place at the centre of proceedings as a human being whose lived experience, wishes, feelings and perspectives should be at the heart of the court’s consideration.

In Committee, the noble Lord, Lord Nash, said that,

“this principle is already captured in existing legislation”.—[Official Report, 6/7/16; col. GC 214.]

However, he referred to provisions in Part 3 relating to local authority consultation duties in respect of the children they look after. This issue is separate from the court’s consideration of the permanence provisions of the child’s care plan. It could be argued that the court’s duty in respect of the permanence provision coalesces with its general duty under the welfare checklist to have regard to the ascertainable wishes and feelings of the child concerned—considered, of course, in the light of his or her age and understanding. However, this is one of many aspects of the checklist; there is a whole long list of things. My amendment seeks to ensure that the local authority seeks and reports on the child’s wishes and feelings specifically on the permanence arrangements, in addition to their wishes and feelings on any other matter affecting them.

Statutory guidance on care planning already refers to the child’s wishes and feelings, so placing the child’s wishes and feelings into this part of the legislation accords with national policy, professional standards and children’s rights under the UNCRC. So I hope that the Minister will be minded to accept the amendment.

[Baroness King of Bow]

My Lords, my motivation in trying to change the law as outlined in Amendment 34 was driven by painful insight. After meeting hundreds of foster families, I realised a strange fact: I had never met a single middle class foster family. Of course they exist, but they are not the norm. The norm is that low-income families foster Britain’s most vulnerable children, and that when children with more complex needs are not attractive to prospective adoptive parents, it is the same low-income foster families that often step in to adopt. So it really would be unforgivable for us to further reduce the income of those families who, after all, are looking after our most vulnerable children on behalf of the whole country, by restricting the child benefit payable to adopted children, for whatever reason.

I am delighted that the Government listened to the extremely powerful contributions made on all sides of the Committee and accepted our argument. I am genuinely grateful, in particular, for the personal intervention of the Minister—who, as far as I am aware, made this decision purely on the basis of the arguments placed before him. God knows how rare it is for Ministers to make decisions purely on the basis of the arguments. That is obviously not a party-political point but a realpolitik point. Having been a parliamentarian and immersed in realpolitik for two decades, it gives me real pleasure that my last speech in this House for very many years, since I am shortly taking a leave of absence, will be a speech accepting this concession. In fact, some noble Lords will know that I should have left already, but I have never been great at making an exit, especially if I have concessions coming—and it turned out to be more than one.

It is not an exaggeration to say that I received the overwhelming support of all sides of the House when I tabled this amendment, as well as the Minister’s constructive response, along with that of his colleague Edward Timpson MP. Those factors combined have made this particular change in the law one of the highlights of my two decades in Parliament. Some may say I should have had a few more highlights, if I am so excited, but it is absolutely good enough for me because, after all, what this change means is that we will not increase financial disincentives for families that want to adopt children currently in care. Of all the subjects I have pursued in Parliament, this is one of those closest to my heart, because I look at my three adopted children every day and marvel at what happens when you give children a chance. That is what this concession does today. So I shall bow out from Parliament by saying thank you, sincerely—it has been a privilege to influence debate.