Children and Families Bill

Baroness Young of Hornsey Excerpts

Monday 14th October 2013 Grand Committee

Moved by

[Baroness Young of Hornsey]

33: After Clause 7, insert the following new Clause—
“Care leavers’ access to personal information
(1) It shall be the duty of every local authority and voluntary organisation that looks after or provides accommodation for a child or young person to maintain such records as prescribed by regulations.
(2) Regulations under subsection (1) may provide for the transfer of records held by a voluntary organisation comprehensive information from the records relating to their personal history, family background and time in care.
(3) A care leaver has the right, at his request, to receive from the local authority or voluntary organisation comprehensive information from the records relating to their personal history, family background and time in care while they were a looked after child or young person, and such information will include personal sensitive data and also identifying information about other family members, acquaintances and significant others.
(4) Subsections (1) and (3) do not apply to a request for information in circumstances where the local authority or voluntary organisation is authorised by regulations to withhold the information or any part of it.
(5) Local authorities and voluntary organisations have a duty to provide appropriate and reasonable support on request, including information and advice, along with explanations of the process of redaction, the offer of appropriate counselling and access to intermediary services to care leavers having received their care records.
(6) The regulations may provide for the circumstances in which the local authority or voluntary organisation holding the records may arrange for another local authority or voluntary organisation near the care leaver’s home to provide access to the records and support.
(7) In this section, “care leaver” refers to a person aged 16 and over who, while they were a child or young person, was in the care of or looked after or accommodated by a local authority or voluntary organisation.
(8) It shall be a defence to any allegation of unlawful disclosure of data under the Data Protection Act by the data controller, if it can be shown that the data controller has made a reasonable examination of the data and has satisfied himself as to the need to disclose data and identities of individuals whose consent has not been obtained under section 7(4) of the Act having regard to the needs of the care leaver as set out elsewhere in this Act.”

[Baroness Young of Hornsey (CB)]

My Lords, I start by declaring an interest as someone who has had direct experience of the childcare system and of accessing social services care records.

This amendment is informed by the experience of care leavers and by professionals in the Access to Records campaign group, which comprises, among others, the Care Leavers’ Association, the British Association for Adoption and Fostering, the Association of Child Abuse Lawyers, the Childcare History Network, the Post Care Forum and Barnardo’s and is also supported by the charity TACT.

Whether they have spent all or part of their childhood and/or adolescence in the care system, for too many the current system simply is not working in a consistent, helpful way. At the moment, care leavers apply under the Data Protection Act for access to personal information held in care records, but unfortunately the DPA is often misinterpreted by local authorities, with some organisations severely restricting the information made available. There are too many examples of care leavers receiving such incomplete and heavily redacted records that their case histories are rendered virtually meaningless. Furthermore, the service given by local authorities is erratic and inconsistent: some are enabling and supportive while others are bureaucratic and obstructive. Some seem so concerned about negligence claims and media headlines that their position is defensive from the very beginning.

The relationship between practice and legislation was brought up in discussion on the previous amendment, and it is key here, too. Our argument is that, although there are regulations and guidelines in place, they are not working sufficiently well. Before I go into the detail of the amendment, I want to say something about the rationale behind it.

Many of the points made by the noble Baroness, Lady Hamwee, last week in relation to Amendment 25 resonated with me, because very similar issues concerning identity, belonging and knowledge of family history are relevant to this amendment. The question, “Who am I?”, is fundamental; it is a question necessary for us to recognise our sense of self and our status as a distinctive and unique human being. We understand that responses to that question are highly complex: we are the sum of our experiences and memories, and of what other people tell us and how they respond to us. Some experiences are indelible and remain with us through memory; some experiences, even though they are an essential part of our experience of the world, may none the less be forgotten, especially if they have produced trauma of one kind or another.

If you have been brought up in care, you come to think about what kind of person you are and where you have come from, asking, “Who am I?”. However, these questions may be unanswerable. Who is there to tell you at what age you accomplished something or about a specific difficulty you had, or the circumstances of your early life? How is it possible to accumulate the kind of knowledge about yourself that people brought up in conventionally caring situations take for granted? It may be your story and your journey but it seems to belong to the state in the form of records, whether they are hand-written, type-written or whatever.

Several thousand people ask to see their records and many of these requests come from people in their middle or later years. The lifelong needs of adult care leavers are at least as pressing as those of adults who have been adopted, although this is rarely recognised in respect of access to care records and the aftermath. The DPA enables care leavers to see personal information about them on their care files. The problem is that when asking a local authority to see these files, care leavers’ experiences range from a response which is at best enabling and supportive and at worst bureaucratic, restrictive and inconsistent with the corporate parenting role. There are some examples of good practice but we want the Government to ensure that local authorities work with the Information Commissioner’s Office to enable care leavers to have all the personal information they are entitled to, and to exercise their discretion regarding third-party information in a less restrictive way.

As I have suggested, despite the requirements already in place, we think that the standard and quality of case-record keeping is not consistent across the children’s services sector. Organisations need to be mindful of keeping older records safely and under secure conditions, whether they are paper, scanned or microfilmed. We have heard too many instances where organisations with poor archival records and retrieval systems respond to the care leaver’s request for personal information with a statement that the files or records cannot be found, without any sense of the profound impact that that can have on the post-care adult. Without support, the persistence necessary to obtain care files places a substantial psychological and emotional burden on the individual, who may already be very isolated. Even if they are not isolated, the impact of disturbing revelations can have repercussions on current relationships and families.

We also need to make sure that we can track where records have moved to: for example, a children’s home might have been closed or a voluntary organisation wound up or absorbed into another organisation. Not being able to find records on that basis is also frustrating and works against care leavers. Regulations could provide a framework for the coherent transfer of care records systems across childcare service providers.

Our evidence suggests that the response from the authorities is often not focused on the rights and needs of the individual care leaver. Again, this echoes other points that have been made in respect of children. Although we are clearly talking here about adults, they still have rights and needs as care leavers that are not being respected by the rather defensive attitudes often displayed by local authorities, which seem to be worried about potential criticism or fearful of litigation.

Similarly, when it comes to sensitive personal data, care leavers can find that many data controllers interpret existing provisions narrowly and that the information withheld significantly reduces clarity about the information they want to access. There are circumstances where organisations can withhold information, and there are plenty of guidelines on that. However, again we come to this point: they are not being implemented consistently or necessarily in the best interests of the adult care leaver who is seeking to find out more about their past, particularly when it comes to relatives. Even if somebody gets hold of their care records, there is then the issue of whether they understand how and why the data controller has made decisions about what information is provided and about what has been withheld, redacted or left out. In relation to that, there is also the need for adult care leavers to at least be offered the opportunity to have some kind of support in going through what is often a difficult situation to navigate.

We understand that some data controllers feel nervous about making disclosures of a sensitive nature that particularly affect other people’s personal backgrounds—for example, a mother or father or other relative—and we want to make sure that data controllers have adequate protection in such circumstances, hence the latter part of the amendment. To summarise, care leavers seek information about their past for all kinds of reasons. It may be that they are starting a new relationship or becoming a family, or perhaps they have been bereaved.

I should like to give a flavour of the experiences of some adult care leavers who have been in touch with, particularly, the Care Leavers’ Association. In one instance, a care leaver—let us call him Arthur—wanted to connect with his records because he was coming to a new phase in his life. He was told that he had come into care because his mother was admitted to hospital but he was not told why. It was considered that the reason for her admission was private and that he had no right to know. It turned out that his mother had suffered from a long-term, severe mental illness.

A second example is of a social worker who took a boxful of records, unsorted, and handed them over to someone on their doorstep and went away again. So there was no support or help through that difficult situation at all.

Another care leaver said:

“I am now at the stage in my search of having applied to Council X three times, Council Y once … Council Z and Council Q as well as making numerous Freedom of Information requests about the children’s homes and other institutions I was kept in as a child”.

Again, the implication of this is that if your own family and children ask you, “What was it like? Where are the photographs of you? What was your family like?”, and you do not have that information, having to persistently knock on the door can be very debilitating.

The Care Leavers’ Association says:

“Care Leavers above a certain age are … a largely invisible group whose rights and needs to access basic information about their family background and childhoods are continually being denied. This discrimination needs to be addressed to ensure that they can access crucial information that may profoundly affect the decisions they make in life. Care leavers’ fundamental human right to access their social care files should be recognised in legislation and fully supported so that they can make sense of their past and go forward into the future”.

I beg to move.

[Baroness Massey of Darwen]

My Lords, I strongly support the amendment of the noble Baroness, Lady Young. This is a very important issue. I applaud her efforts in challenging the current problems for care leavers in accessing their records and I respect her poignant experiences and her descriptions of the loss of identity, the “Who am I?” and the journey.

The treatment of care leavers can be about blatant discrimination and defensive responses. I have been told by two people how much distress and frustration this has caused them. As the noble Baroness said—I want to underline some of these matters—there are many forms of such discrimination. Those that I have heard of relate to organisations which have poor information, or have a reluctance to seek out information and respond that the records cannot be found—that they have lost the records. In one case, I heard that records had been moved. As the noble Baroness said, children’s homes close and organisations merge. Where do these records go? How does the care leaver find them? What help is there for them to find them?

Some local authorities or voluntary organisations become defensive or evasive, despite the fact that a care leaver has the right to access personal information. The request for information may also involve another person who has to give permission, although it may be deemed possible to give the information without permission, but some organisations which control those data may interpret the rules very narrowly. I know of one person who is still trying to access information after a year of trying. Redaction of records may occur, as the noble Baroness said. In this case, surely local authorities and voluntary organisations should provide explanations and offer counselling and support to those who receive their care records.

There needs to be flexibility about who can provide the information. People change residence. It should be possible for another local authority or voluntary organisation near where the care leaver lives to provide information and support the care leaver. People who have been in care may be desperate to access information about their life—just as those who have been adopted may wish to access records. To remove part of someone’s life history is surely cruel and unnecessary. I look forward to the Minister’s response.

--- Later in debate ---

[Baroness Young of Hornsey]

My Lords, I start by thanking the Minister for his response and for his offer for me to meet with officials to discuss this issue further. There is still a case to answer here. In the brief life of this Committee, we have heard time and time again that there is a huge amount of inconsistency across different local authorities and that there is a disconnect between practice and what already exists, so we are not getting the impact. My noble friend Lady Howarth talked about initiatives in record-keeping but that is not happening in a consistent way and this still needs to be addressed.

We have a whole suite of amendments relating to looked-after children. Like my noble friend Lord Listowel, I am very pleased that the Government are taking seriously the need to address the needs of this particularly vulnerable group. However, those needs do not stop the moment you leave care. Although the noble Lord referred on a number of occasions in his summing up to children, we are actually talking about post-care adults who still have needs, vulnerabilities and difficulties and who still have to come to terms with their difficult experiences.

I thank my noble friend Lord Listowel and the noble Baroness, Lady Massey, for their support. I can clarify for the noble Baroness, Lady Jones of Whitchurch, a point about the doorstep incident. I was not very clear because I was desperately trying to summarise what I wanted to say. What actually happened was that the social worker brought the box around and handed it over to the person, who was hoping for her notes and records but who just got this box with a load of papers in it in no particular order. There was no understanding that this was a difficult situation to handle: the social worker was off again in her car straight away. It was not just a box of papers dumped on the doorstep but, having said that, the whole issue of redaction is one that I would like to explore with the Minister and officials. Having said all that, I beg leave to withdraw.

Amendment 33 withdrawn.

--- Later in debate ---

[The Earl of Listowel]

My Lords, this amendment would allow young people in care to remain with their foster carers until the age of 21 where they and their foster carers agreed to do so. I hope that it might be helpful if I give a couple of examples of practice in this area already. Before I do so, I would like to correct an omission that I made earlier. The Minister was kind enough to say some good words about my work in this area, and I omitted to thank him for them. I appreciated what he said.

I recall a couple of relevant episodes while on the All-Party Parliamentary Group for Looked After Children and Care Leavers. One young man described his experience of being set up in independent accommodation. Pretty soon the local drug dealer had decided that he wanted to join this young man, and soon afterwards he lost his accommodation. I think that he also ran up a big back rent. A foster carer talked to me about a young girl who had been excited by the prospect of moving into independent accommodation at 17 or whatever, and his comment was, “Well, she was doing so well at school while she was with me, but now that she’s independent she obviously has other priorities”. We should try to normalise the experience so that it is what we would want for our own children: we want them to keep in touch with us and we do not want them disappearing goodness knows where, getting mixed up with goodness knows whom.

If I may make just one more comment, there has been a lot of concern about the experience of young women in care in recent years—the past 18 months, I suppose. One has to remember that many of these girls and women leaving care have had poor experience of men in their lives, and unfortunately many of them may turn to men who will not treat them well. For them this has been the norm and their experience. It has been striking for me, in recently meeting young women who have been allowed to stay with their foster carers past the age of 18, that they have a good continuing relationship with their male foster carer—and one can hope that they have a better model of how a man can relate to a woman than many of those who move out earlier.

Young people are living at home longer than ever, with an average of leaving home now at well over 24, yet many children in foster care, who are arguably among the most vulnerable in society, are still required to leave their foster home at the age of just 17. Those who get to stay past their 18th birthday are either the lucky few, funded by their local authority, or fortunate enough to have foster carers who can afford to offer them a home for free and support them out of their own pockets. Research shows that the longer a young person can stay with a foster family, the more successful they are later on. In 2011-12, only 320 young people remained with their foster carers past the age of 18, which is only 5% of care leavers; in the most recent year, only 10 more young people stayed put. It has been put to me that, in the current rate of progress, to reach the Government’s aspirations of 25% of young people staying put would take about 140 years.

Care leavers are more likely to be unemployed, young single parents, mental service users, homeless or in prison than those who grew up in their own families. This amendment to the Children Act 1989 is really important, in that it would allow young people to remain with their foster carers up to the age of 21. Staying Put has been piloted already in 10 local authorities across England, with great success. Young people who stayed with foster carers were twice as likely to be in full-time education at 19, compared to those who did not. Those staying put gave young people more control over their lives and their transition from care. Studies have shown that allowing young people to remain in care until 21 is associated with increased, post-secondary educational attainment, delayed pregnancy and higher earners.

The benefits to care leavers and to society of extending care have been found to outweigh the cost to government by a factor of at least 2:1, so staying put represents value for money. The department’s evaluation of the pilot found that to implement the policy nationally would require £2.7 million per year. This modest funding could be found partly through a smarter use of existing expenditure but, given all the burdens being placed on local authorities, it is only reasonable, especially as central government will be the greatest beneficiary in the long term, that a sum is set aside to enable local authorities to make the transition to this new arrangement, with many more—we hope that soon it will reach 25%—staying put.

To point out the saving to state-funded services, I turn first to housing. For every young person staying put with their former foster carer instead of independent living before they are ready, a one-bedroom flat is freed up locally, so this saves on local authorities paying rent on such properties in the private sector at high expense. Many care leavers who are forced to live independently before they are ready build up huge rent arrears, and that money is rarely recouped. Staying put is successful also in tackling the benefits cycle that young people are often at risk of entering. The one-to-one support and guidance offered by foster carers to young people in their transition to adulthood is crucial to ensuring that they can be helped on the road to becoming net contributors to society as adults, rather than a drain on resources. Those who stay put are more likely to be working full-time or part-time, or studying, and hence claim less housing benefit and income support.

The Children’s Minister strongly shares our belief that more young people should be allowed to stay with their foster carers for longer, and I am grateful to the Minister for taking a couple of occasions over the summer to talk to me about this issue. I recognise that the Government really want to see this happen, but they are in favour of a voluntary approach. As I have said, over the past year, only 10 more young people have taken up the Staying Put offer, so overall there has been a 0% increase because the number of young people coming into care has increased over the period.

What is happening is that, even in the current situation, many young people and foster carers have had to fight with their local authorities to allow and support Staying Put placements. We need an end to this postcode lottery. It is unacceptable that at a time when young people should be focusing on their education and training, as the noble Lord, Lord Touhig, said, they face doubt and anxiety over their future. Interviews with former pilots show that half had scaled back the provision, either by reducing the maximum age from 21 to 19 or by excluding NEETS, who are the people most in need of support and guidance. While I welcome the Government’s current interest in care leavers and the many important measures that they are bringing forward, I believe that without legislation, too few fostered young people will have a realistic chance of staying with their foster carers beyond the age of 18. This is a rare opportunity to change the law and ensure that the next generation of care leavers is given a better start in adult life. My parents would not have wished there to be any uncertainty that I would not get the support I needed to go through my education and go to university. I am sure that noble Lords as parents would also want to be certain that they could support their daughters and sons through whatever they chose to do during their transition to adult life. So far, I have not heard anything from the Government to reassure me that we will see this happen soon. If we introduce this provision in the legislation, within a short time we would see hundreds of young people on a better course as they left care. I look forward to the Minister’s response and I beg to move.

[Baroness Young of Hornsey]

My Lords, I strongly support this amendment. As I said earlier, it is part of a suite of amendments aimed at making the lives of young people in care more palatable. The idea of being told at the age of 16, 17 or 18 that you are going to be independent and that you will live in a flat, with minimal training in handling a budget and coping with the unwanted visitor referred to by my noble friend Lord Listowel who will derail your attempts to study or work, is unthinkable in relation to our own children. There is a concept that we should think of children in care or looked-after children as being our children, so we should do everything we can to ensure that they do not experience even more disadvantage.

I am not going to repeat all the statistics, research and evidence put before the Committee by my noble friend; suffice it to say that the Staying Put scheme was piloted in 11 local authorities. As he has said, the outcomes for the young people who stayed with their foster carers were significantly and substantially better than for those who were not able to do so. It gave them an opportunity to take more control over their lives and to make more successful transitions from care towards independent adulthood. The Fostering Network found that none of the pilot authorities reported significant problems with foster carer provision as a result of offering the Staying Put scheme, which I know is a concern that has been expressed by some people. While a minority did say that staying put would mean that in theory a former foster bed would no longer be available, it is often the case that foster carers plan to retire after the placement ends and would have been retiring at whatever age the young person left, whether or not it was beyond the age of 18. In addition, foster carer recruitment strategies have simply been amended to suit the new needs of the service.

I shall quote a leaving care manager who participated in the Staying Put pilot scheme. He said:

“Nowadays we do not even recruit foster carers who would not want to offer Staying Put. Indeed, because many of them now want to provide a Staying Put placement, we are keeping them happy and ensuring their future commitment to our service by allowing them to keep young people living with them. They see it as the natural and obvious thing for a professional fostering service to do and they want to play a part in that”.