Children and Social Work Bill [HL]

Lord Nash Excerpts

Tuesday 18th October 2016 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I have a question about the data on outcomes. In the recent care leavers strategy, it was published that 90% of care leavers up to the age of 21 are in satisfactory accommodation. But the data that that was based on suggested that 81% were in satisfactory accommodation. Will the Minister take that away and get back to me to explain why those outcome measures seem not to agree with each other? I hope that that is clear enough.

[The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)]

My Lords, I would like to thank noble Lords for these amendments. I will speak about each one in turn, commencing with Amendment 33, which would prohibit profit-making in children’s social services functions, and then Amendment 35, which would put a duty on local government to report on several outcomes for vulnerable children and for the Secretary of State to publish an annual report on these outcomes.

I recognise that profit-making in children’s social care is a sensitive issue, and I entirely understand noble Lords’ desire to ensure that legislation is clear on this point. We believe that it is. There is already a clear legislative restriction on the outsourcing of children’s social care functions in the 2014 relevant care functions regulations. There are also restrictions on profit-making by adoption agencies through the fact that the Adoption and Children Act 2002 allows an adoption service to be operated only by a local authority or an organisation that is not carried on for profit. These restrictions as they stand in secondary legislation have exactly the same force as they would in primary legislation. Any attempt to remove them would need to be debated in both Houses. Therefore, although I entirely understand the intention, I do not think it is necessary to move this to primary legislation.

The noble Lord, Lord Warner, referred to the LaingBuisson event—an ideas-generating event exploring new approaches to service delivery. As he said, concerns were raised about profit-making in child protection, and these are reflected in the 2014 regulations to which I have already referred.

I understand, however, that there is some concern about whether Clause 29, the power to test new ways of working, could be used to reopen this matter. I have therefore tabled a government amendment that will explicitly rule out using Clause 29 for profit-making. This was never the intention behind the clause, but by including this amendment I hope to put the point beyond doubt.

On Amendment 35, the Government are committed to understanding what drives successful outcomes for vulnerable children. It is critically important that we collect data from local authorities and others to steer evidence-based and effective policy-making. The Government have already placed a duty on local authorities under Section 83 of the Children Act 1989 to provide information to the Secretary of State on their performance on a wide range of children’s social care functions, including on vulnerable children and care leavers. The Department for Education already publishes annual reports on the outcomes for vulnerable children, including their educational attainment and levels of absence and exclusion from schooling. For looked-after children, we also collect information from local authorities on offending, substance misuse, healthcare, and emotional and behavioural health. For care leavers, we publish information on their accommodation—

[Lord Watson of Invergowrie]

I welcome the information that the Minister has given us about the Children Act. However, can he say whether any of the headings listed in Amendment 35 appear in that legislation and whether any of them are reported on as things stand under that legislation?

[Lord Nash]

I will check that and come back to the noble Lord, either today or in writing.

For care leavers, we publish information on their accommodation and its suitability, as well as information on their participation in the labour market. Statistics are published annually.

As with national data, it is essential that local authorities collect the data they need at a local level to offer bespoke services to their communities. We know that many local authorities are making great progress on their data analysis capabilities. Noble Lords may be interested in looking at the Association of Directors of Children’s Services report, Pillars & Foundations: Next Practice in Children’s Services. The Department for Education is exploring ways of improving data collection on the experiences and outcomes for vulnerable children. Last year, for the very first time, we published factors identified by social workers in assessments of children, including parental and child risk factors. This helps us to understand the risk factors that are likely to lead to social work intervention with families.

I recognise that there is more we can do to make better use of data. Putting Children First, published in July, sets out the programme of work we are following to improve our data. We want to ensure that our data collections are focused on the most useful information without placing unnecessary burdens on local authorities. We are working with local government and with Ofsted to align different data requests and avoid duplication.

We also recognise that data collected by other departments or agencies offer the potential to gain a fuller understanding of the outcomes achieved by vulnerable young people. We plan to identify opportunities across government to align and analyse different data collections to understand trends and to target resources effectively. We are already working with HMRC, the Department for Work and Pensions and the Ministry of Justice. The Department for Education will soon run its first children’s services omnibus survey, which will include questions on children’s social care to gather information from senior leaders and managers in local authorities. This biannual survey will run initially for two years, enabling us to collect data to track changes. We expect the first results to be available in early 2017.

On the point raised by the noble Earl, Lord Listowel, I will write to him on that matter. I will also write to the noble Lord, Lord Watson, on the point that he raised.

I hope that the noble Lords, having heard that I am tabling a government amendment around profit-making and of the existing legal requirements and planned activity to report on outcomes for vulnerable children, will withdraw or not press their amendments.

[Lord Watson of Invergowrie]

I thank the Minister and look forward to receiving his letter. I note what he says about further legislation on profit-making not being necessary. As I have moved the amendment on behalf of the noble Lord, Lord Ramsbotham, I should just say that he asked whether the Minister would meet with him in advance of Third Reading. As the Minister is nodding, I take it that he accepts, so that is welcome.

The noble Lord, Lord Warner, mentioned the LaingBuisson report. The Minister may recall that I recently asked a Written Question on when the report was going to be published, and his response was something like “in due course”. It would be helpful if we could have it published before we return for day 2 of Report, which is nearly a month away. That would perhaps give us the ability to have a fuller debate. I think it is there; it just has not been published. If the Minister could push that along, that would be helpful.

I note what the Minister says about collecting data and that leading to evidence-based policy, which is something that I very much agree with. In terms of the information collected already, he seemed to suggest that the means were already there for the information mentioned in the amendment to be collected. When his letter is received, I will see whether that is the case. At the moment, there is still concern. Given the changes in this Act, and moving forward not least after today on mental health, we would like to see something measured as a benchmark against which we can measure progress. I am also interested to hear about the children’s services omnibus survey, and I think that will be widely welcomed. I look forward to the outcomes of that in a year’s time. On the basis of the Minister’s responses, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Nash]

36: Clause 12, page 11, line 10, leave out “arrangements” and insert “regulations”

[Lord Nash]

My Lords, I shall speak to Amendments 36, 39, 42, 45 and 48. Amendments 36, 39 and 42 relate to Clause 12, regarding the Child Safeguarding Practice Review Panel.

The Delegated Powers and Regulatory Reform Committee noted that the Bill sets out the functions of the new panel through a combination of provisions in the Bill and arrangements. The committee’s view was that the proposed use of such arrangements constitutes the delegation of a legislative power. As I noted in Committee, I agreed with the committee’s arguments, and these amendments reflect its recommendation that the arrangements should instead be set out in regulations, which are subject to affirmative parliamentary scrutiny. I hope that noble Lords will welcome these amendments, which provide for robust parliamentary scrutiny.

Amendments 45 and 48 amend the regulation-making powers referenced in Clauses 15 and 17. In setting up their local safeguarding arrangements, safeguarding partners are required to consider which agencies they may need to work with and how they organise themselves most effectively to safeguard and promote the welfare of children. The regulation-making power in Section 16E(3) of Clause 15 provides for the Secretary of State to specify the relevant agencies that exercise functions in relation to the welfare of children and with whom the safeguarding partners need to consider working.

The Government have considered the Delegated Powers and Regulatory Reform Committee’s report and recommendations. The report recommended that the relevant agencies should be named in the Children and Social Work Bill, rather than in regulations brought forward by the Secretary of State. Our view is that the relevant agencies should not be listed in the Bill. In order to allow for arrangements to be fully tailored to the specific needs and circumstances of each local area, we need safeguarding partners to know that they have flexibility and discretion. Specifying relevant agencies in primary legislation would not adequately signal this.

However, we are bringing forward Amendment 45 to provide that the regulations made by the Secretary of State that specify the relevant agencies will be subject to the affirmative procedure. The draft regulations will therefore be considered in both Houses of Parliament, which I hope noble Lords will welcome. Furthermore, as promised to the DPRRC, an indicative list of relevant agencies has been provided to noble Lords, on which I would very much welcome noble Lords’ comments.

Section 16G(6) inserted by Clause 17 sets out that regulations can provide for enforcement of the duty imposed in Section 16G(4) by the Secretary of State. This would occur only where the Secretary of State considers there to be no other appropriate means of enforcing that duty.

Amendment 48 states that the regulation-making powers of the Secretary of State introduced by Section 16G(6) to enable the enforcement of the duties imposed by Section 16G(4), cannot “create criminal offences”. Again, this was set out in response to the DPRRC. I beg to move.

--- Later in debate ---

Moved by

[Lord Nash]

37: Clause 12, page 11, leave out lines 15 to 17 and insert—
“( ) The purpose of a review under subsection (1)(b) is to identify any improvements that should be made by safeguarding partners or others to safeguard and promote the welfare of children.”

[Lord Nash]

My Lords, I shall speak to Amendments 37, 38, 41, 46 and 47.

These relatively minor refinements, through Amendments 38 and 47, to the terminology used provide greater specificity and focus to the clauses. The Government believe that this will more precisely clarify the overall purpose of the new local and national reviews. Clauses 12 and 20 refine and strengthen the description of the purpose of local and national reviews, to be conducted by the Child Safeguarding Practice Review Panel and the safeguarding partners respectively. Amendments 38 and 47 provide more specific detail around what should be published following those reviews, where it might be inappropriate to publish the full review. The amended wording states that the purpose of a review should be to identify,

“improvements that should be made”,

rather than,

“to ascertain what lessons … can be learned”.

Amendment 37 relates to the national child safeguarding practice reviews, and requires the identification of improvements that the safeguarding partners should make to improve safeguarding and promoting the welfare of children, following the review. Amendment 46 relates to the local child safeguarding practice reviews, and requires the identification of improvements that persons in the local area should make to improve safeguarding and promoting the welfare of children, following the review.

We have listened to noble Lords’ comments in Committee, and heard consistently that reviews of incidents of serious harm to, or death of, children should focus on what can be done to reduce the chances that such incidents will be repeated. We therefore feel that it is necessary to step away from the broad language of “lessons learned”, which all too often has focused on what went wrong and who is to blame, rather than focusing on why things went wrong, and what can be improved to reduce these incidents in the future. Amendments 38 and 47 are linked to this.

In the unlikely event that it is deemed not to be appropriate to publish the full child safeguarding practice review following an incident, Clauses 12 and 16 require the panel and safeguarding partners for national and local reviews respectively to publish certain information about the case. Amendments 38 and 47 specify that the information published, in the absence of the full report, should relate to the,

“improvements that should be made”,

rather than the “lessons to be learned”.

Amendment 41 adds to new Section 16B(9), inserted by Clause 12, a definition of who the safeguarding partners are. This is necessary as Amendment 37 introduces the safeguarding partners into new Section 16B(2). I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I think we should welcome this and thank the Minister for listening to what was said in Committee. I take it that in setting out an improvement agenda, which is to be welcomed, the Government will, of course, draw on lessons that will have been learned from cases that have gone wrong. As I understand it, these should be used in a non-punitive way, as much more a learning experience.

--- Later in debate ---

Moved by

[Lord Nash]

38: Clause 12, page 11, line 29, leave out “lessons to be learned from the case” and insert “improvements that should be made following the review”

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, clearly there are huge constitutional issues around the independence of the judiciary and there would be a very strong view in your Lordships’ House of the need to protect at all costs that independence in the judgments they make. Equally, what we would like from the Minister is some assurance that, in the generality of judicial actions in this area, there is at least some work in relation to lessons to be learned. The change in the wording from “lessons learned” to “improvement” reinforces the case that the impact of judicial decisions must surely be considered as part of a general improvement agenda, without in any way seeking to interfere in the role of the judiciary and, of course, its judicial independence.

[Lord Nash]

My Lords, I am grateful to the noble Lord, Lord Warner, for this amendment and for the important issue that he has raised. As noble Lords will recall, in Grand Committee he raised the role of the judiciary in serious cases involving children, with particular reference to the tragic case of Ellie Butler. I have since written to him further on this matter, as he said. Noble Lords will also recall that, in the Butler case, Ellie’s father had his conviction for grievous bodily harm in relation to injuries suffered by Ellie overturned by the Court of Appeal. Later, a finding of fact judgment, which took place as part of care proceedings, was also overturned. That led to the return of Ellie and her sibling to the care of her parents, a process overseen by an independent social work agency under instruction from the court, as the noble Lord, Lord Warner, has said. Tragically, within a year of being returned to her parents, Ellie was murdered by her father.

No one can fail to have been moved by the circumstances of that case, and it is understandable that queries have been raised about the impact of judicial decisions in particular cases, and the role of the judiciary in the serious case review process more generally. However, as the noble Lord, Lord Hunt, has mentioned, the judiciary is independent and, for constitutional reasons, it cannot and should not be held to account by the current serious case review process, or, in future, by the Child Safeguarding Practice Review Panel. This does not mean that there is no process for responding to decisions made by judges—which may be appealed at the time. Alternatively, if there is concern about a judge’s conduct, a complaint may be made to the Judicial Conduct Investigations Office.

I appreciate the noble Lord’s concern—which he has also put in writing to me— about the potential impact of judicial decision-making on the ability of local authorities to discharge their statutory functions. I agree that this may be a matter which reviews carried out on behalf of the panel could highlight. The noble Lord will appreciate that, through this Bill, it will be the role of the Child Safeguarding Practice Review Panel to identify serious child safeguarding cases that raise issues which are complex or of national importance and to supervise the production and publication of reviews. The panel will certainly be concerned to make recommendations, through its reviews, as to what improvements should be made by safeguarding partners or others in respect of the safeguarding and welfare of children. Where such recommendations relate to, or could relate to, judicial practice, the Department for Education will continue to work closely with colleagues from the Ministry of Justice to communicate these recommendations to the judiciary, so that the judiciary can consider what, if any, impact there should be on judicial practice. Judicial practice does, of course, remain a matter for the judiciary itself.

It is not that the panel cannot review and make recommendations; it can. It just cannot direct the judiciary, although we will work with it to make sure that lessons are conveyed. Given the panel’s remit and concerns that have been expressed regarding the need for the panel to be independent of the Government, I do not feel that it would be appropriate to include guidance from the Secretary of State to the panel on this issue. The panel must be free to set its own terms of reference for individual reviews, and I would expect this to include consideration of how a local authority has discharged its safeguarding responsibilities under all circumstances—or if, indeed, it had had difficulty in discharging them for whatever reason. Indeed, this consideration would also apply to all other agencies and could be a significant finding in a review leading to improved practice across the country. However, as each case will be different, general guidance to address what will be a case-by-case consideration is not likely to be beneficial or practicable.

On whether independent social workers are regulated, I assure the noble Lord that all social workers are professionally regulated. In view of this, I hope that he will be reassured about the scope of the panel’s functions, including the need for the panel to be able to treat each situation on a case-by-case basis and make the recommendations it sees fit, and therefore will feel able to withdraw the amendment.

[Lord Warner]

I am partially reassured. The Minister mentioned appeals, but they can take a very long time, and there is a very good chance that Ellie would have been dead before an appeal was heard in her case.

There is another constitutional issue, which is that judges should not be able to change the law. In this case, the judge changed the law and inhibited the local authority in discharging its statutory safeguarding duties. I ask the Minister to think a bit more about this and to look at the guidance in Working Together to Safeguard Children because it is not consistent with what he has said today. I beg to leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Nash]

41: Clause 12, page 12, line 13, at end insert—
““safeguarding partners” means persons who, under section 16E, are safeguarding partners in relation to one or more local authority areas in England (see subsection (3) of that section);”

--- Later in debate ---

Moved by

[Lord Nash]

43: Clause 13, page 12, leave out lines 25 to 34 and insert—
“(1) Where a local authority in England knows or suspects that a child has been abused or neglected, the local authority must notify the Child Safeguarding Practice Review Panel if—(a) the child dies or is seriously harmed in the local authority’s area, or(b) while normally resident in the local authority’s area, the child dies or is seriously harmed outside England.”

[Lord Nash]

My Lords, I shall speak first to Amendments 43 and 44, which concern changes to Clause 13. These changes remove the duty on local authorities to notify the Child Safeguarding Practice Review Panel of deaths of children in regulated settings and of looked-after children. Under the original wording of the clause, notifications would have been required irrespective of whether these children had been abused or neglected. I assure noble Lords that this in no way weakens the scope of the panel’s powers. All cases where the local authority knows of or suspects abuse or neglect, including of looked-after children and of children in regulated settings, such as children’s homes and secure institutions, must still be notified to the panel under the general duty to notify cases of death or serious harm. These amendments will mean that cases for which the panel has no specific remit should not be notified.

The addition of a new notification criterion under new Section 16C(1)(b) clarifies that it is the responsibility of the local authority where the child is normally resident to notify when a child dies or is seriously harmed while outside England and when abuse or neglect is known or suspected. This responsibility to notify when the child dies or is seriously harmed while outside England will provide local authorities with clear accountability for notifying such events.

I should stress that “outside England” includes where the incidents occur in the devolved Administrations as well as overseas. I should also stress that local authorities will be obliged to notify only incidents of which they are aware and which they know or suspect meet the criteria. The provision will enable the panel to consider potentially serious events that occur outside England. The amendment also makes clear which local authority is responsible for notifying relevant events that take place within England. By making the local authority in which an incident occurs responsible for the notification, it is more likely that incidents will be notified swiftly.

Amendment 44 is a technical change in response to changes made by Amendment 43. The removal of paragraph (d) of new Section 16C(1) means that the requirement for regulated settings to be given a meaning in regulations is redundant.

I shall speak also to Amendments 49, 50 and 51, concerning child death reviews. Amendment 49 provides further clarification of the scope of the child death review arrangements. It will explicitly enable child death review partners to review the death of a child not normally resident in their local area in order to ensure that improvements can be made, especially in the area where the death occurred. Amendment 50 is a minor technical amendment to allow for the introduction of Amendment 49. Amendment 51 sharpens the terminology of what should be reviewed and analysed by child death review partners by making it clear that they should review the death or deaths relevant to the welfare of children in the area or to public health and safety.

Clarifying the powers of the child death review partners to enable them to review the deaths of children not normally resident in the area will increase the opportunities for improvements in learning with regard to child deaths. For example, if a child normally resident out of the country dies as a result of an accident in a play area in an English local area, it is currently unlikely that the learning from that death will be disseminated to the local area in which the child died. We want to improve the opportunities for local areas to identify what more can be done to reduce the risks of any child dying, whether or not they are normally resident in the relevant local area. These amendments will clarify the responsibilities of child death review partners to do this where they consider it appropriate. I beg to move.

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for his introduction to this group of amendments and I will be brief. As we stated in Committee, we broadly welcome the section on the child death reviews, and now these amendments that address the outstanding issues and concerns that were raised. In particular, we note the Government’s response in Amendments 43 and 44 to the Delegated Powers and Regulatory Reform Committee’s concerns in its first report on the Bill that the Bill should contain a definition of the regulated settings in which a child death would trigger a notification to the safeguarding practice review panel. The committee rightly underlined that the definition of regulated settings would be fundamental in determining the scope of a local authority’s duty to provide information about cases to the panel.

The Minister, in his response letter of 11 October to the committee, and now in Amendment 43, has, in our view rightly, come to the conclusion that a broader definition under Clause 13 of notification by local authorities to the panel of a child’s death or of serious harm should also apply to looked-after children and children in any other regulated setting. Amendment 44 therefore removes the reference to regulated settings from the Bill, and we welcome this.

Amendment 49 enables child death review partners to review child deaths taking place in an area where children are not normally resident. We welcome this, too, in addition to the related powers that they will have to seek and analyse information related to such cases. The Wood review into the role and functions of local safeguarding children’s boards and children’s deaths overview panels highlighted the substantial problems in gathering and analysing data on child deaths. This proposal, combined with the general obligations that will be imposed with regard to gathering, providing and reporting will, I hope, begin to address this important issue.

--- Later in debate ---

Moved by

[Lord Nash]

44: Clause 13, page 12, leave out lines 39 and 40

--- Later in debate ---

Moved by

[Lord Nash]

45: Clause 15, page 14, line 10, at end insert—
“( ) In section 66(3) of that Act (regulations subject to affirmative procedure) after “16B,” (inserted by section 12) insert “16E(3)”.”

--- Later in debate ---

Moved by

[Lord Nash]

46: Clause 16, page 14, leave out lines 21 to 24 and insert—
“( ) The purpose of a review under subsection (1)(b) is to identify any improvements that should be made by persons in the area to safeguard and promote the welfare of children.”

--- Later in debate ---

Moved by

[Lord Nash]

48: Clause 17, page 15, line 25, at end insert “(but the regulations may not create criminal offences)”

--- Later in debate ---

Moved by

[Lord Nash]

49: Clause 23, page 18, leave out line 11 and insert—
“(1A) The child death review partners may also, if they consider it appropriate, make arrangements for the review of a death in their area of a child not normally resident there.(1B) The child death review partners must make arrangements for the analysis of information about deaths reviewed under this section.”