Children and Social Work Bill [HL] Debate
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Lord Nash
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Children and Social Work Bill [HL]
Lord Nash Excerpts(8 years, 4 months ago)
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Lord Warner (Non-Afl)
Will the Minister think about a very simple question? If you take powers to bring things up to national level and away from local level, I suggest that you then have an obligation to monitor what happens to the output from that new national body and to account yourself for whether anything has been implemented. Can the Minister explain to the Committee a little more about how that aspect of all this is going to work?
The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)
My Lords, in this group Amendments 105, 107, 108, 109, 109A and 110 concern places of detention, serious child safeguarding cases and serious harm. I am grateful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Baroness Walmsley, for these amendments. I particularly thank the noble Lord, Lord Watson, for his very encouraging opening remarks—but I understand that the new Prime Minister will not be in No. 10 until Wednesday evening, so noble Lords will probably have to put up with us at least until then.
Before I turn to these amendments, I confirm that I would be delighted to convene a meeting to give noble Lords more detail on the Child Safeguarding Practice Review Panel. A meeting was specifically requested at our last Committee session by the noble Lord, Lord Warner, and the noble Baroness, Lady Pinnock, but the invitation obviously extends to all noble Lords.
I will begin with Amendments 105, 107 and 110 concerning places of detention. I had hoped that I had reassured noble Lords about the independence of the Child Safeguarding Practice Review Panel at the end of the last Committee sitting—particularly the noble Lord, Lord Watson, and the noble Baroness, Lady Howarth, who raised these concerns. As I said then, the establishment of a strong, independently operating national panel is essential. Because of its independence, the panel will have the autonomy to use its judgment about the circumstances in which it deems it necessary to carry out a national review, although we intend to provide guidance that will aid its decision-making in this regard. I assure the noble Lord that we will take particular care to reflect on the importance of children held in detention, and to consider carefully the ways in which the guidance for the panel reflects not just the deaths of children, but children who have been abused or neglected.
The existing 2015 statutory guidance, Working Together to Safeguard Children, sets out that a serious case review should always be carried out when a child dies in custody, in police custody, on remand or following sentencing in a young offender institution, a secure training centre or a secure children’s home. The same applies where a child dies who was detained under the Mental Health Act. We will want to consider carefully how any new guidance produced for the panel takes this into account, bearing in mind the panel’s basic functions of the panel.
On Amendment 109A, I can assure the noble Lord, Lord Ramsbotham, that anyone may notify the panel of serious events in institutional settings, or indeed of such events in any place. Clause 13, as drafted, deals with requirements on local authorities but does not prevent others making direct notifications. In respect of the proposal to add a specific reference to guidance, I assure the noble Lord that Clause 12 already provides for the panel to have regard to any guidance issued by the Secretary of State in respect of its functions, and Clause 13 provides the same in respect of local authorities’ duty to notify. We will make it clear that others may notify the panel of events directly.
I now turn to Amendments 108 and 109. Amendment 108 seeks to add to the definition of serious child safeguarding cases by including specific reference to cases where physical injuries or harm are caused by unlawful or abusive restraint in any institutional setting. Amendment 109 seeks to broaden the scope of the definition of serious harm to include both ill treatment and the impairment of physical health. I agree entirely with the premise behind the amendments. However, inevitably, any such definitions cannot be exhaustive and include all circumstances, or cover all settings within which children might suffer injury or harm.
The definition in Clause 12 of serious child safeguarding cases includes reference to children who have been seriously harmed. This is based on the definition set out in the current safeguarding statutory guidance, Working Together to Safeguard Children, which was drawn up following consultation last year. The definition of serious harm includes the factors stated in subsection (9). The wording proposed is not intended to cover all scenarios. Great consideration was given to the factors to be included in the definition of both serious child safeguarding cases and serious harm for the purposes of the clause. It will be for the panel to consider each case in line with these definitions to identify serious child safeguarding cases and determine what form of review is required. We expect that to include cases where factors such as those outlined by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Walmsley, are a feature.
Clause 12 sets out the functions of the new panel. The panel will identify serious child safeguarding cases in England that raise issues that are complex or of national importance. The purpose of any such review will be to ascertain how practice by local authorities or others to safeguard children can be improved as a result of learning from the cases. I assure the noble Baroness, Lady Meacher, that this is about improvements in practice that can be disseminated nationally, not about the blame or public censure of individuals. Any disciplining of individuals will be done through the usual employment processes where they are working, or with reference to professional bodies, if needed. Reports on serious cases should not name individuals, whether they are professionals, children or family members. Writing reports in a way that ensures individuals are not named has been a long-standing convention in serious case reviews, and this should continue under the new arrangements. I assure the noble Baroness that the guidance will make this point absolutely clear.
As for her point about Amendment 114, we will come to it in detail in two groups’ time.
Baroness Meacher
I am aware that this practice has gone on—you have anonymity, and so on—yet somehow the media or national politicians get the names of the front-line people and their lives are wrecked. Therefore, there needs to be very clear separation of those matters that remain local and do not find their way up to the national panel, national politicians and the rest of it, most particularly the media. I hope that the Minister would be able at least to reflect on that or perhaps give us some reassurance. As for keeping anonymity, the media know jolly well how to find out people’s names—they crawl around, as the Minister well knows. We need procedures and practices that make very clear the single objective of the national panel—to learn lessons and disseminate—and that it does not need all the information about an individual. Somehow, a wall needs to be created to safeguard those people, otherwise we will not have front-line staff.
Lord Nash
I will reflect and look into that in more detail. Once it is in the public domain that a particular instance is being investigated, knowing the media, however much you try to protect an individual’s identity, I cannot see quite how one can do it—but I will certainly look at it. The noble Baroness raises a very important point which we are aware of.
I should add that the Government have now responded to the Delegated Powers and Regulatory Reform Committee, in answer to some of the points made by the noble Lord, Lord Watson. The response confirmed the Government’s intention to bring forward an amendment at a later stage to modify the provisions to ensure that the arrangements to which the clause refers be subject to affirmative parliamentary scrutiny.
Lord Nash
Yes is the answer.
Clause 13 requires local authorities to notify the panel of events in their area where a child has died or suffered serious harm and is known or suspected to have suffered abuse or neglect. The clause will place the process of notifying such events to the panel on a statutory footing for the first time, demonstrating the importance that the Government attach to this process and leaving no room for doubt as to whether to report an incident.
If this part of the process is not made a statutory duty on local authorities, there is a risk that some events may not be notified, thereby reducing the likelihood of events being scrutinised and action taken to reduce the likelihood of such an event taking place in future. The DPRRC also commented on this clause in its report. The Government’s response to the report confirms an intention to look again at the definition of regulated setting, as well as agreeing that any future amendments to the definition should be by the affirmative procedure. We intend to return to this matter at a later stage.
The noble Baroness, Lady Pinnock, asked about the importance of taking into account local issues. The panel will make its decision on the basis of information from local areas. It will include the probation service in the list of relevant agencies. We will come shortly to a set of government amendments that respond directly to Alan Wood’s recommendations on local accountability. If I may, I will cover the rest of her points then.
She also asked a very good question, supported by my noble and learned friend Lord Mackay, about how learning will be implemented. Our whole reform to social work and the point of the national panel is to improve implementation. Our new What Works centre for children’s social care will have a key role in disseminating learning and making sure that it is acted upon. As under current arrangements, local safeguarding will be expected to report on practice improvements identified through the reviews and on action taken in response.
My noble and learned friend Lord Mackay commented on the guidance. I will not talk about guidance in general, but we have significantly reduced the statutory guidance on child protection in the past five years, and we keep it constantly under review. I hope that the explanation of Clauses 12 and 13 provides reassurance about the Government’s intentions, and I therefore urge the noble Lord and the noble Baroness not to press their amendments.
“( ) The Panel may enforce the duty under subsection (2) against the person or body by making an application to the High Court or the county court for an injunction.”
Lord Nash
My Lords, I will speak to this amendment, which enables a request for information by the Child Safeguarding Practice Review Panel to be enforced. It is essential that the panel is able to request information to enable it to perform, or assist it in performing, its functions. This may also include normally privileged information, which is frequently an integral part of what has to be considered as part of the review process. This is already set out in Clause 14.
This amendment enables the panel to apply to the court for an injunction, should a person or body refuse to comply with a request by the panel for information. In the case of normally privileged information, the panel will consider the reasons for that. It may ask the person or body to justify any refusal, but may ultimately compel that information to be provided. As previously discussed, however, this provision would not apply to the judiciary, whose independence is a constitutional matter.
The Wood review highlighted the critical importance of effective and speedy sharing of information and data in relation to protecting and safeguarding children. This clause will underline the importance of sharing relevant information with the panel, backed up with the power of enforcement. I beg to move.
Lord Warner
My Lords, we had a good go over the issue of the judiciary on our last Committee day. The Minister slid very quickly over this particular issue in his remarks—namely, that judges are exempt. Can he pray in aid what the provisions are that stop a review panel looking at the conduct of a judge? We spent a lot of time on the case of Ellie Butler, but that was clearly a case where the practice of the judge could be called into question—not just on the individual circumstances but on the systems issue of whether the judge could actually replace social workers who had been protecting the child for some period and bring into being a new review of the child’s circumstances by a set of private social workers, for whom the child was a new client. That is a systems issue; it is not just about the judgment of the judge but about a piece of practice that seems to me to be at least arguable. Why, in that set of circumstances, should the judiciary be exempt from review by this panel?
Lord Hunt of Kings Heath (Lab)
My Lords, I have just picked up the debate we had in Grand Committee on 6 July, when the noble Lord, Lord Warner, raised the issue of legal and medical privilege. Then the noble Lord said he did not think that anything needed to be added to the Bill, although he recognised that guidance would need to be given to the panel in respect of the information it requests.
I assume that there will now be a considerable time between Committee and Report. I understand that this is a very complex matter. The question of the independence of the judiciary is clearly paramount; equally, my noble friend has made an important point about the need for the panels to obtain relevant information. So, rather than a quick letter, I hope that the Minister will agree to consider this important matter in some depth.
“Local arrangements for safeguarding and promoting welfare of children
After section 16D of the Children Act 2004 (inserted by section 14 of this Act) insert—“Safeguarding partners for local authority areas16E Local arrangements for safeguarding and promoting welfare of children(1) The safeguarding partners for a local authority area in England must make arrangements for—(a) the safeguarding partners, and(b) any relevant agencies that they consider appropriate,to work together in exercising their functions, so far as the functions are exercised for the purpose of safeguarding and promoting the welfare of children in the area.(2) The arrangements must include arrangements for the safeguarding partners to work together to identify and respond to the needs of children in the area.(3) In this section—“relevant agency”, in relation to a local authority area in England, means a person who—(a) is specified in regulations made by the Secretary of State, and(b) exercises functions in that area in relation to children;“safeguarding partner”, in relation to a local authority area in England, means—(a) the local authority;(b) a clinical commissioning group for an area any part of which falls within the local authority area;(c) the chief officer of police for a police area any part of which falls within the local authority area.””
Lord Nash
My Lords, I would like to speak at some length to Amendments 113 to 120, and I will include Amendments 133 and 134 as they are related but purely technical amendments.
Amendment 113 is central to the new arrangements. It requires the safeguarding partners, namely the local authority, chief officer of police and clinical commissioning groups to work together, along with the agencies they consider to be appropriate, to make arrangements to exercise their functions to safeguard and promote the welfare of children in the area. These safeguarding partners must also make arrangements to identify and respond to the needs of children in the area.
In May this year, the Government published the Wood review into the role and functions of LSCBs. This review, through extensive consultation, identified the key role of local authorities, police and health services in the safeguarding and welfare of children. The review found that without the agreement and full collaboration of these three bodies, the strategic decisions necessary to underpin effective practice cannot be taken. The new clause gives these key safeguarding partners the flexibility to determine which other relevant agencies they need to work with, and to decide how they can work together most effectively to identify and respond to the needs of children in their local area.
The new clause will allow the Secretary of State to specify in regulations the agencies which exercise functions in relation to children. This will, of course, include relevant agencies such as schools, youth offending and justice agencies and a range of others which exercise functions in relation to the welfare of children. The key change here compared with existing arrangements is that local areas would decide which agencies to involve and in what ways, rather than having a list imposed on them by central government. We intend that statutory guidance will specify that the safeguarding partners will be expected to consult locally before making the arrangements.
Evidence suggests that too many local safeguarding children boards are currently ineffectual and that significant reform is required. The Wood review found that the organisational boundaries between local authorities, police and health services too often act as a barrier to effective multiagency working. This provision would place upon these three key safeguarding partners an equal responsibility to work together. It will enable their vital contributions towards the safeguarding and promotion of the welfare of children to be better co-ordinated and deployed, and reduce the duplication of existing work. It will provide greater flexibility for local areas to arrange their services according to local assessment and agreement.
Amendment 114 sets out the requirement on safeguarding partners within a local authority area to carry out local child safeguarding practice reviews. This proposed new clause links closely to Clauses 11 to 14, which set up the independent Child Safeguarding Practice Review Panel and a system of national reviews, and sets out a requirement for the safeguarding partners to make arrangements for local reviews. Most reviews into serious cases will take place at local level. Safeguarding partners will identify serious child safeguarding cases which raise issues of importance for that area and supervise the review of the cases as they so determine. The primary focus of such reviews will be on how practice by local authorities or other local bodies can be improved as a result of the case. If the safeguarding partners identify a serious child safeguarding case which they think may raise issues that are complex or of national importance, or where it becomes apparent that a case raises such issues, they will be free to refer it to the Child Safeguarding Practice Review Panel.
Baroness Tyler of Enfield (LD)
I shall add one more question to those posed by this very important set of amendments about how to improve local arrangements and have more effective multiagency safeguarding. I can think of nothing more important than that this works.
When I looked again at Alan Wood’s very interesting report, I saw two sentences that so far have not been picked up in this debate. They read:
“I would also add that national government departments do not do enough to model effective partnership working between themselves for local agencies. The join up demanded of local partners is not particularly evident at national level”.
For the new arrangements to work, and it is critical that they do, it is vital that government departments are modelling more effective collaboration in the area of safeguarding. I would be grateful to the Minister if, when he responds, he could tell us what steps government departments are taking nationally to model this behaviour.
Lord Nash
My Lords, I am grateful for this debate. On the points raised by the noble Baroness, Lady Pinnock, local arrangements may include elected representatives but this is a matter for local determination. On her second point, Amendment 113 gives the safeguarding partners flexibility to determine who the other relevant agencies are but, having determined that, those relevant agencies have to co-operate.
On the publication of annual reports, my answer says that this enables public scrutiny as it is transparent. As for the point made by the noble Lord, Lord Hunt, about how local areas organise themselves—the noble Baroness also asked about flexibility on the areas to align operational reach—I can confirm that the local authority area will be the key area and accountability will be to the local authority. It is designed to ensure flexibility within that structure but, to answer the noble Lord’s point, there is no hidden agenda. We are concerned here purely with the matter of improving child safeguarding.
The noble Baroness asked about monitoring progress and reviews. I already covered some of that in my answers about the What Works centre for children’s social care. The duty remains for local arrangements to report on their practice and action taken in response. The second question asked by the noble Lord, Lord Hunt, was who the safeguarding partner will designate as a relevant agency so that it can keep track of what is going on. I will certainly look at that. His third question was about Amendment 119 and whether the guidance will be statutory. It will.
The noble Lord, Lord Warner, made a point about Amendment 116 and a common identifier and whether we could not use the NHS identifier. Obviously, we want this to work well. That is an entirely new point to me; I will take it back and look at it in some detail.
Lord Hunt of Kings Heath
My Lords, as we are in Committee I say to the Minister that the latest report of the Delegated Powers and Regulatory Reform Committee has miraculously reached me and that it comments on his Amendments 113 and 115. It refers to two instances where the committee considers that the delegated power conferred in the amendments is inappropriate. I do not expect him to respond today, clearly, but I hope that between now and Report he will give that some attention.
Lord Nash
We are considering that report and we will respond in due course. On the point made by the noble Baroness, Lady Tyler, about national government departments modelling effective collaboration, we are indeed taking considerable steps to work together effectively, in particular with the Home Office and the Department of Health. In view of what I have said, I hope noble Lords will support the amendment.
Baroness Pinnock
In response to my question about local elected representation, the Minister said that that ability was currently there. Yes it is, but as observer status. If there is to be an opportunity to challenge it, the membership of that board needs to be on the same level. An observer status puts the individual in a much lesser category of importance on that body. In order to have elected challenge on the panel, they ought to be full members of the board.
“Local child safeguarding practice reviews
After section 16E of the Children Act 2004 (inserted by section (Local arrangements for safeguarding and promoting welfare of children) of this Act) insert—“16F Local child safeguarding practice reviews(1) The safeguarding partners for a local authority area in England must make arrangements in accordance with this section—(a) to identify serious child safeguarding cases which raise issues of importance in relation to the area, and(b) for those cases to be reviewed under the supervision of the safeguarding partners, where they consider it appropriate.(2) The purpose of a review under subsection (1)(b) is to ascertain what (if any) lessons can be learned from the case about the way in which persons in the area should work to safeguard and promote the welfare of children.(3) Where a case is reviewed under the supervision of the safeguarding partners, they must—(a) ensure that the reviewer provides a report on the outcome of the review;(b) ensure—(i) that the reviewer makes satisfactory progress, and(ii) that the report is of satisfactory quality;(c) provide the report to the Secretary of State and the Child Safeguarding Practice Review Panel.(4) The safeguarding partners must publish the report, unless they consider it inappropriate to do so.(5) If the safeguarding partners consider it inappropriate to publish the report, they must publish any information relating to the lessons to be learned from the case that they consider it appropriate to publish.(6) The Secretary of State may by regulations make provision about—(a) criteria to be taken into account by the safeguarding partners in determining whether serious child safeguarding cases raise issues of importance in relation to the area;(b) the appointment or removal of a reviewer by the safeguarding partners, including provision for a reviewer to be appointed by the safeguarding partners from a list provided by the Secretary of State;(c) the time when a report is to be provided to the Secretary of State or the Child Safeguarding Practice Review Panel, or published;(d) the procedure for a review;(e) the form and content of a report.(7) In this section “reviewer” means any one or more persons appointed to review a case under the supervision of the safeguarding partners for a local authority area.””
“Information
After section 16M of the Children Act 2004 (inserted by section (Child death reviews) of this Act) insert—“16N Information (1) Any of the child death review partners for a local authority area in England may, for the purpose of enabling or assisting the performance of functions conferred by section 16M, request a person or body to provide information specified in the request to—(a) the child death review partner or any other child death review partner for the area, or(b) another person or body.(2) The person or body to whom a request under this section is made must comply with the request.(3) The child death review partner that made the request may enforce the duty under subsection (2) against the person or body by making an application to the High Court or the county court for an injunction.(4) The information may be used by the person or body to whom it is provided only for the purpose mentioned in subsection (1).””
“Abolition of Local Safeguarding Children Boards
(1) Omit sections 13 to 16 of the Children Act 2004 (Local Safeguarding Children Boards).(2) In Schedule 1 to the Local Authority Social Services Act 1970 (social services functions of local authorities), in the entry relating to the Children Act 2004—(a) for “13 to 16” substitute “16A to 16Q”;(b) omit “targets for”;(c) omit “, and to Local Safeguarding Children Boards”.”
Lord Nash
This new clause is purely technical, but fulfils some important functions. Subsection (1) means that the existing provision for LSCBs, as set out in Sections 13 to 16 of the Children Act 2004, will be repealed. Local authorities will no longer be required to establish LSCBs. Instead, they will work with chief constables and clinical commissioning groups to set out Working Together arrangements, as specified in amendments to the Bill that we have previously discussed.
Subsection (2) amends the Local Authority Social Services Act 1970 to redefine social services functions by removing the reference to LSCBs and including provisions in relation to joint working arrangements in child death reviews that are the subject of amendments to the Bill. Where the term “social services functions” is used in legislation in respect of local authorities, the arrangements which these amendments provide for will be included. This is consistent with existing provisions for local authority functions relating to LSCBs.
An example of the importance of this provision is the Secretary of State’s intervention powers where local authorities are failing properly to fulfil any of their social services functions. The amendment means that should local authorities fail to fulfil their functions as set out in Sections 16A to 16Q of the revised Children Act 2004, the Secretary of State will be able to issue a suitable statutory direction. I should stress that this provision relates only to local authority functions. It does not cover any failures by clinical commissioning groups or chief constables in these arrangements. Existing provisions for intervention—sitting elsewhere—already cover other such failures. I beg to move.
Lord Watson of Invergowrie
My Lords, the Minister said that this is a technical amendment. Yes, it is, but the introduction of the Child Safeguarding Practice Review Panel will see the disappearance of local accountability for the most serious child abuse. The current process has an independent chair appointed by a national panel of experts, who are themselves independent. That means that local knowledge is retained, because representations can be made by those who are involved with the child and indeed the family, and, importantly, those who have an understanding of local characteristics. If the local safeguarding children boards are scrapped, how can the Minister reassure us that the local input will not be lost?
Baroness Bakewell of Hardington Mandeville
I will also speak to Amendment 126. I believe the relationship between what is currently the local safeguarding board and the national one is very clearly understood, with clear roles and responsibilities for each. My county council’s view, from experience, is that safeguarding absolutely must be owned by the local agencies that are responsible on the ground for improving safeguarding. The national safeguarding panel should therefore have a role in understanding local issues. I am concerned that, if the intention is to centralise at the national level, the national panel might not have the capacity or the local knowledge and experience to review and intervene in a timely way. I agree entirely with the comments made by the noble Lord, Lord Watson.
Lord Nash
On the points that have just been made, I thought we had discussed them at considerable length two groups ago. In answer to the noble Baroness, Lady Pinnock, I said that the panel is perfectly free to have elected representatives on it, as distinct from the current situation with LSCBs. They would not have to be co-opted, but can be full members of the panel. We have also made it clear, as we have discussed in some detail, that the panel can involve relevant agencies as it sees fit. As the whole point is to improve the analysis of what happens at local level, I feel that we have covered this issue. If the noble Lord or the noble Baroness thinks that we have not done so, I am happy to write to them with more details.
Baroness Pinnock
My Lords, I concur with all the concerns that have been expressed so far about Clause 15. It is not that any of us are against innovation per se, but we are concerned about the proposed non-limits to the innovation.
At the heart of this clause is a dichotomy. On the one hand, children’s social work is probably the most regulated of all public services and has the most legislation surrounding its practice. On the other hand, if we take the clause at face value, it appears to allow any innovation within those regulations to be set aside. I asked civil servants what the criteria are for innovative practice, what the boundaries for it are and whether anything is off the table. The answer was that there are to be no limits. I found that quite disturbing. It is not as though we are dealing with anything mechanical here; we are dealing with the most troubled and vulnerable children in our society, who deserve our protection. What we need to try to achieve is set out in the Putting Children First report, which offers a blend of innovation and protection that works.
I have not yet understood how, on the one hand, Leeds City Council, which has been referred to in earlier debate on the Bill, has been enabled to innovate without difficulty—I know that it has been allowed to set aside some regulations, without the need for this clause, and has been successful in doing so—yet on the other, Doncaster Council, which sadly have a long history of inadequate children’s services, has not achieved much improvement despite all the efforts that have been put into it. The answer is that it is not so much legislation and regulation that is the problem, but having the support of key professionals—making sure that we have highly trained, effective and good leaders in social care, who can make a difference. That is what the report, on which I guess that many of the clauses in the Bill are based, says. Can the Minister tell us: is anything off the table as regards innovation, or is protection of children coming first?
Lord Nash
My Lords, I will speak to Amendments 129, 130, 131, 131A, 131B and 132, in this group regarding the power to test new ways of working. I thank noble Lords for tabling these amendments to the clause, providing me with an opportunity to explain its purpose and operation in more detail. In short, this is purely to improve the provision of services to children.
Before I go into detail, I would like to return quickly to our discussion about profit of last week. I could not help reflecting that I might be the only noble Lord present who has spent most of his life, until recently, proudly in pursuit of profit. That fact may itself raise wider issues, but I say again that we have no intention of revisiting the settled position on profit-making in children’s social care or of using Clause 15 to circumvent that position. I gave that assurance at Second Reading and do so again now. The policy paper Putting Children First, published last week, makes the same commitment and the Minister for Children and Families reiterated the point in his speech to the Association of Directors of Children’s Services last week. I hope that that makes things absolutely clear.
At the heart of this power to test new ways of working is the intention to achieve better outcomes for children and young people. This unwavering focus is at the very core of the department’s agenda to drive innovation and improvement. More significantly, the push to remove procedural barriers to better ways of working is in direct response to what local authorities are telling us young people are saying to them. They want things done differently.
The Government’s £200 million children’s social care innovation programme has enabled local authorities to develop and test new ways of working, but in some aspects of provision this has reached the limits of what is possible under current children’s social care legislation. This power responds to the sector’s appetite to go further by allowing it greater flexibility to support young people in the most effective way. A number of noble Lords referred to examples of good innovation, some of which have been pointed out by Ofsted. They referred particularly to Leeds, one of our partner in practice local authorities, which has told us that it is proud of the innovation it has achieved so far within the current framework—but it is also keen to go further for children and families in its area. It cannot do that without this provision.
This power is about creating a safe mechanism to test new ways of working to improve outcomes for children.
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.
Lord Nash
I heard the noble Lord the first time. I have not got very far but if I am allowed to continue I shall get to it. This power is about creating a safe mechanism to test new ways of working to improve outcomes for children. It creates a controlled, time-limited space to test new ideas. It is not about eroding children’s rights or removing the basic duties of local authorities to safeguard children. The power is not about questioning the fundamentals of what local authorities need to do, but about exploring how things could be done better.
I will try some more illustrations. I do not suppose they will get me very far but since I have more to say, perhaps people could bear with me. I shall illustrate this point with two examples. First, it is felt that on some occasions applying the full gamut of care-leaver regulations associated with children on remand, who automatically become looked-after when in custody, is not always the best option for those children. Local authorities are interested in developing a service that better responds to their needs, informed by the young person, which, where a local authority can make a professional decision, would ensure better and informed choices without an unwanted service automatically being triggered by legislation. A real-life example of that was given to us by one of our partner in practice local authorities. In this instance, the young person was returning to live with their grandmother. Applying the burdens and processes associated with looked-after children placements unnecessarily overcomplicated matters for both the authority and, most importantly, the young person and their family.
Secondly, as I highlighted at Second Reading, there is a widespread view that adoption and fostering panels do not always add value, and can often delay the process of approving prospective carers. These panels are only advisory, with the ultimate decision resting with the local authority. Local authorities explain that they think they could get to the same decision quicker without the panel in some circumstances. The freedom likely to be requested would be to remove the requirement always to have the panel in place for all cases, and for the agency decision-maker, who currently makes the decision, to continue to exercise their professional judgment. In straightforward cases, the decision would be made quicker to allow the best solution to be progressed faster so that children get the support they need. I heard what the noble Lord, Lord Watson, said about the concerns that Coram has in this respect, and we will be very happy to talk to Coram about its concerns in some detail.
I will speak to other examples as I go through my response to the amendments. In turn, the department will look to evaluate the use of the power so that we understand the impact, where there is a case for permanent changes to the legislative framework—changes that would of course come back for further scrutiny to this House.
I turn to Amendment 129, clarifying the purpose of this power to innovate. I agree that a focus on improved outcomes for children and young people is key. However, the drafting of the clauses already makes clear that the power is focused on outcomes for children and young people. Clause 15(1) refers to children’s social care legislation. The Children Act 1989 and its associated legislation is designed with the outcomes for children and young people at its core. By referencing children’s social care legislation explicitly, it is clear that the clause is directed at outcomes for children and young people.
On Amendments 130 and 131, I agree that the Bill should not lead to any changes that adversely affect the rights of children or lead to the withdrawal of support or services that they depend on. The whole point of these clauses is to allow local authorities to do things better. We do not propose to put an independent review panel in place. However, there will be a variety of safeguards in place to ensure that the power is not misused and that all applications are subject to very robust consideration before they are approved.
In particular, I draw noble Lords’ attention to the requirements both on the local authority to consult its safeguarding partners and relevant agencies and on the Secretary of State to consult Her Majesty’s Chief Inspector of Education, Children’s Services and Skills and the Children’s Commissioner. Of course, representing the views of children and young people is a key part of the Children’s Commissioner’s role, and Ofsted will also need to consider its functions of promoting the best interests of children when consulted on the use of the power. It is also important to note that any changes to primary legislation will be debated in both Houses, which in many ways constitutes the independent reviewing process that these amendments seek. In answer to the point on consultation with children in care and their representatives made by the noble Lord, Lord Wills, I agree that the voice of the child should be recognised when requested freedoms are being considered.
While I am not proposing to accept the amendment, I would like to provide reassurance that children are at the core of this provision. In most cases, we would expect local authorities to have consulted children affected by any change and in fact many of the possible changes that local authorities have discussed with us originate from requests from children, as I have already said. For example, in the case of independent reviewing officers, children have fed back to our partner in practice authorities that they do not like additional people who they do not know to be present at their case reviews discussing intimate information. More specifically, in the case of North Yorkshire, just over 400 children and young people are looked after. The vast majority are very settled and achieving well. Older young people in this position tell the authority that they find regular formal reviews unsettling and that they would like to be treated like their non-looked-after peers. There is then a much smaller number, on average 20, who are not currently settled and require regular in-depth reviews. This is one area in which a request for use of the power to innovate may well be made to make more effective use of the experienced cohort of independent officers.
The noble Lord, Lord Watson, talked about the risk assessment of exemptions. I agree that it is vital that we consider this carefully before any exemptions are agreed. We will need to do that, looking at the merits of each application from the local authority, when bringing forward regulations under Clause 15. Noble Lords may know that in responding to the DPRRC report I committed to bring forward an amendment to ensure that all regulations will be accompanied by a report setting out anticipated benefits and the protections to be put in place by local authorities to mitigate risks. That, combined with the other safeguards that we have in place, means that risk will be assessed and managed.
The noble Baroness, Lady Bakewell, raised a point about how local authorities would be chosen. I would expect any local authority that wants to apply for an exemption to demonstrate strong leadership and either strong performance or a clear trajectory of improvement consistent with the approach that it wants to test. Ultimately, the Secretary of State will not take forward any requests if she has concerns about the local authority’s ability to implement the change safely or to learn from the testing and share its insights with the wider sector. That is why I anticipate that the first application will be from our partner in practice authorities—a group of 11 of the best-performing children’s services in the country.
The noble Lord, Lord Warner, and the noble Baroness, Lady Walmsley, raised points about Professor Eileen Munro and what she wanted. She said:
“I welcome the introduction of the power to innovate set out in the Children and Social Work Bill. This is a critical part of the journey set out in my independent review of child protection towards a child welfare system that reflects the complexity and diversity of children’s needs”.
I am delighted that so many noble Lords have referred to excellent examples of innovation by various local authorities, but of course just because some innovation is taking place without changes to legislation does not mean that others will be able to innovate without making such changes. Of the examples that we have been discussing with local authorities, all need exemptions from secondary and in some cases primary legislation. I will write to the noble Lord, Lord Warner, setting out what primary and secondary legislation blockages are in place before Report.
To answer the noble Baroness, Lady Pinnock, there are no limits to what can be requested; the Secretary of State is concerned about the impact on children, and if she thinks it is appropriate, it will proceed.
However, in view of noble Lords’ concerns and suspicions about our motivation, the best way forward—in addition to writing to the noble Lord, Lord Warner, and sharing that letter with all Peers—is to have what I suggested. I hope that all noble Lords who are interested will come to a meeting with a number of local authorities and individuals where they can explain in detail why they need this power, and noble Lords who feel that they can achieve the same objective without using it can talk about that. We can have a detailed, granular discussion about specific examples, rather than a high-level discussion, which is always, in my view, rather dangerous. I commit to organising that, and I hope that all noble Lords will attend.
Lord Hunt of Kings Heath
My Lords, before the noble Lord sits down— I thank him for his response—is not the requirement really to have a meeting with parliamentary counsel to see how Clause 15(2) can be redrafted in such a way that it is clear that the kind of change that the noble Lord wishes to make is essentially small-scale and minor? The problem is that, although he has made that commitment from the Dispatch Box, none the less, this is such a huge power. It is not the issues, it is the way it is drafted. Surely there must be a different way to draft a power that allows for certain discretion in the circumstances he describes without seeming to exempt the whole of social care legislation. I suggest that parliamentary counsel might have a role to play.
Lord Nash
I think it would be much better to make that analysis when we have had the sort of meeting I am talking about and we have more visibility on particular examples.
Amendment 121A, tabled by the noble Earl, deals with support and safeguards where the power is used. I briefly return to my previous point that the power is about creating a controlled mechanism for testing, strengthening and improving the current system. It is not about removing basic rights that are essential to improving outcomes.
I give another example to illustrate the use of the power. Local authorities tell us that a carer who is either a family member or friend is often thought to be the best placement option for a child in care, but the requirement that they become an approved foster carer after a 16-week grace period can be difficult to achieve, especially where family and friends have no real desire to be local authority-approved foster carers generally. We discussed in Committee last week the important role that grandparents can play. This is exactly the sort of area where use of the power could make better use of the strengths they bring.
Exemption from this requirement could mean local authorities being able to place a child with the person to whom they have the greatest attachment. There could still be an option for the carer to become an approved foster carer if they wish, but the exemption would give flexibility for the carer and a better chance of achieving the most suitable option for the child being selected.
Returning to the amendment, requiring a local authority to reinstate existing processes and procedures upon individual request would considerably weaken a local authority’s ability to assess the effect of the power. As outlined in my example above, however, there is nothing to stop a local authority offering this level of service if it was in the best interest of the child. Let me reassure noble Lords that exemptions will be granted only for a time-limited period because the local authority and the Secretary of State are persuaded the new approach holds out the likelihood that the child or children can be better served in a different way.
In order to test and evaluate exemptions properly, I feel it is right that local authorities should not be subject to an infinite range of requirements in respect of different children, but can use their professional judgment in response to the child’s request. I remind noble Lords that if regulations made under the power are not found to have had the desired effect, they can be revoked swiftly using the negative resolution procedure. In addition, authorities are and will be subject to the usual Ofsted inspections and will be monitored via the department to evaluate and create an evidence base of what works.
I recognise that Amendment 131B reflects the recommendations of the DPRRC. I am happy to say that in my response to the Committee last week I signalled my intention to make amendments to achieve the same effect. In view of that, I hope that the noble Lord will feel reassured enough not to press his amendment at this time and will support our amendment at Report.
Finally, I turn to Amendment 132 and the interaction between this power and the corporate parenting principles. There are numerous broad, overarching duties on local authorities in children’s social care legislation in different Acts of Parliament. The corporate parenting principles are an example of such an overarching duty. Our conversations with local authorities have not been focused on these overarching duties. They want to focus on how they could change the way of working to allow their children’s social care staff to focus more on children and families themselves, not on changing their overall objectives. Specifically to exclude an overarching duty such as corporate parenting would beg the question as to why it had been singled out. Excluding some but not others could give rise to the same question. Equally, excluding all overarching duties from the many pieces of primary legislation in the area of children’s social care would make the clause unnecessarily complex.
““relevant agency”, in relation to a local authority area, has the meaning given by section 16E(3) of the Children Act 2004;“safeguarding partner”, in relation to a local authority area, has the meaning given by section 16E(3) of the Children Act 2004;”
Lord Watson of Invergowrie
My Lords, I, too, thank my noble friend Lord Dubs for bringing forward this amendment. The standard of debate has been high and I do not want to add too much more to it. The experience of my noble friend Lord Dubs in this matter—most recently on the Immigration Bill—is well documented and hugely appreciated. When unaccompanied children come to this country, however they arrive here, and try to fend for themselves, it is fraught with all sorts of dangers. The noble Lord, Lord Storey, has just talked about children at school but many of these children never reach school because they are kept in an environment where they are exploited; they are not educated or made into good citizens. The noble Baroness, Lady Pinnock, made a point about a two-tier society, and that should resonate with us.
My noble friend Lord Judd, in talking about the action plan, spoke of setting the tone, but I would put that tone into a wider setting. One or two noble Lords referred to the events of a couple of weeks ago which were described as—it is a description that I would subscribe to—pulling up the drawbridge on the world to some extent, and that is the way it is viewed. Britain’s reputation has plummeted and has been matched only, it would seem, by the value of the pound in the last two or three weeks. We need to look at positive ways of showing that that is not all we are about.
I was profoundly depressed to read a report at lunchtime by a man called Mark Hamilton, who leads for the National Police Chiefs’ Council. He was reporting on an unprecedented spike in hate crime in the country within the last three weeks, directly related to the vote on 23 June. If we have an opportunity to show that we can do different and more positive things and that, despite the impression we have given, we are outward looking and welcoming as a country, then small measures can build into larger things. I think that this amendment is one of those acorns that may grow into something much more substantial.
I wish my noble friend Lord Dubs well in his meeting with Mr Brokenshire. I hope that the Minister will go to that meeting as well so that a way can be found of accommodating this amendment. It is important not just for the framework of this Bill and not just for the individuals concerned but potentially for the way that we are perceived as we approach difficult situations and respond to tragedies in other parts of the world. For that reason, I very much hope that a positive outcome for the amendment will be found, because it certainly deserves it.
Lord Nash
My Lords, I am grateful to the noble Lord, Lord Dubs, for his amendment. I recognise that it seeks to safeguard and promote the welfare of this vulnerable group, and I assure him that I appreciate the sentiment and good will behind it. I also appreciate the strength of feeling in this Committee about the plight of unaccompanied minors who seek refuge in the UK, as illustrated by the contributions to the debate by other noble Lords, and I share those feelings.
The amendment seeks to ensure clarity on the action that will be taken and the support that will be offered to local authorities looking after unaccompanied children. Under the Children Act 1989, unaccompanied children become looked-after children once they have been accommodated for 24 hours. They will then have their welfare promoted in the same way as any other looked-after child. I emphasise that their country of origin and the circumstances under which they arrived in the UK will have no bearing on the support that these children are entitled to.
The number of unaccompanied asylum-seeking children has risen significantly in recent years. In 2015 we saw a 56% increase in the number of unaccompanied children claiming asylum in the UK. However, as noble Lords have pointed out, until now the majority of unaccompanied asylum-seeking children have been cared for by a handful of local authorities. This has placed a considerable strain on their children’s social care services, which sometimes has been to the detriment of local children for whom the local authority has corporate parental responsibility. That is why the Government on 1 July launched a new voluntary transfer scheme that encourages all local authorities to participate in the care and support of unaccompanied asylum-seeking children who arrive in the UK.
The National Transfer Scheme was created after extensive consultation with the Local Government Association, the Association of Directors of Children’s Services and individual local authorities. The scheme is based on the principle that no local authority should be expected to care for more unaccompanied children than its services are able to provide for—whether asylum-seeking children, as the majority will be, or unaccompanied refugee children brought to the UK through our resettlement scheme.
The noble Lord, Lord Dubs, raised the point about funding. To support the National Transfer Scheme the Government have increased the amount of funding that they will provide to local authorities caring for unaccompanied asylum-seeking children. Annual support for each child aged under 16 has risen from £35,000 to £42,000, and each unaccompanied asylum-seeking child aged 16 or 17 will attract £33,000 per annum. This represents a 20% and 28% increase in funding respectively.
Because we are increasing the number of local authorities that look after unaccompanied children, these children will be better able to access services such as mental health and other healthcare services, and local authorities will have more capacity to deliver excellent social work support and care. Local authorities will also be able to prepare themselves and commission the new services that are required, such as appropriate accommodation.
The National Transfer Scheme includes a rigorous administrative process by which the Home Office and the local authority in which the child first presents are able to collect information about each child and then ensure that the local authority receiving the child receives all that information. The scheme seeks to build on existing regional structures and use the regional strategic migration partnerships to co-ordinate regional hubs and enable the regional pooling of knowledge and resource.
A central administrative hub based in the Home Office will work with the regional hubs to ensure a nationally co-ordinated but regionally implemented scheme. Funding that might be provided to the regional hubs via the regional strategic migration partnerships is currently under review, while each region is considering its own data, process and resource requirements. The Home Office will consider any proposals for regional structures to underpin the scheme. Service providers are being encouraged to contact the regional hubs to share their expertise. We know that some regions are already discussing how to pool resources and share expertise.
In addition, two training initiatives are under way. I can announce today that the Department for Education will commission an organisation to deliver training for the foster carers and support workers of unaccompanied asylum-seeking children who are at risk of going missing from care due to being onward-trafficked. That is a new provision. In collaboration with the Department for Education, the Home Office has already said that it will commission a training programme for the existing independent advocates, who are provided for in statute. This will improve their awareness and understanding of the specific needs of trafficked children and how to support them.
Noble Lords will appreciate that a great deal is happening in this area to promote better support, and the details are laid out in the scheme. While the support and care of unaccompanied asylum-seeking children is undoubtedly an important issue, I do not believe that a published national action plan for their welfare is required, given all that is happening under the National Transfer Scheme.
The noble Earl, Lord Listowel, asked about the Children’s Champion. The Office of the Children’s Champion will remain in the Home Office to ensure that all children’s safeguarding issues are addressed and attended to. In addition, the Children’s Commissioner in the Department for Education speaks on behalf of this group of children.
The noble Lord, Lord Judd, asked about asylum applications. It is always open to a person to make an application for asylum. There is no age barrier and as soon as an asylum application is lodged, it will always be considered.
The Government remain committed to ensuring that Parliament is kept informed about these issues. No one should be in any doubt of our commitment to bring vulnerable refugee children from Europe to the UK, as underpinned by the Immigration Act 2016. Unaccompanied refugee children with family connections to the UK continue to arrive from France and other European countries. We are also in active discussions with the UNHCR, UNICEF, NGOs and the Italian, Greek and French Governments to strengthen and speed up the mechanisms to identify, assess and transfer to the UK children who meet the criteria where it is in their best interests. This is in addition to the support for unaccompanied asylum-seeking children who arrive from Europe without any assistance. Last year, there were over 3,000 claims for asylum in the UK from unaccompanied children.
I will reflect on the points that noble Lords have made and that will no doubt be discussed in the meetings with Mr Brokenshire. I hope that the noble Lord, Lord Dubs, will feel reassured enough to withdraw the amendment.