Children and Families Bill

Lord Ramsbotham Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I declare an interest as vice-chairman of the Institute for Food, Brain and Behaviour. I entirely accept what the Minister said about the value of nutrition. For two or three years we have conducted work in a secondary school in Dagenham. That work is about to be published and shows the value of correct nutrition on not just the educational awareness of children but also on their behaviour. We would be very happy to share this research with the Minister and her officials.

[Baroness Lister of Burtersett (Lab)]

My Lords, I warmly welcome the amendment and the Minister has underlined the case for it. I have two questions. What will be done to monitor the effects of the new provisions with a view to considering whether to extend them to other age groups, as the proposed new clause would allow, and what criteria will be used in considering whether to extend them? Will the Minister explain what the implications will be for the pupil premium, because eligibility for the funding of it is tied to free school meal eligibility, and if free school meal eligibility is being extended in this way does this mean that the pupil premium will also be extended?

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[Baroness Massey of Darwen]

My Lords, in moving Amendment 59A, I also wish to support Amendments 59B and 59F, to which the noble Lord, Lord Ramsbotham, will mainly speak. I want to make three very quick points about the Children’s Commissioner. One is about human rights, one is about the commissioner’s powers and one is about his appointment.

I thank the Minister and his team for investigating the concerns expressed in Committee and for his helpful and clear letter. We are particularly grateful that the Government have now published the framework agreement between the Department for Education and the Office of the Children’s Commissioner.

The introduction of that framework contains a statement on the independence of the Children’s Commissioner and the overarching principles. However, neither the framework nor the Minister’s letter contain the UN affirmation that national human rights institutions such as the Office of the Children’s Commissioner should clearly state that members and staff of such bodies,

“will not receive instructions from government ministers or other public officials, directly or indirectly”.

I do not see the issue of prohibition directly spelled out in the letter or the framework.

Secondly, I realise that the commissioner still does not have the power under the Human Rights Act to deliver on individual cases. I understand the reason for that: it would be an impossible task. However, the amendment of the noble Lord, Lord Ramsbotham, with which I agree, seeks to draw attention to particular groups with specific problems—for example, children in custody, unaccompanied migrants and trafficked children. In other words, it is about children who are living without their parents—a particularly vulnerable group. I shall leave the noble Lord, Lord Ramsbotham, to elaborate on that but I have my own concerns.

My third concern relates to the appointment of the Children’s Commissioner. I hope that the appointment will be independent of political bias. It requires someone who has strong experience of working with children and children’s services in the voluntary sector and who understands the wide scope involved in dealing with all kinds of children, particularly vulnerable children, at a national and local level. The person who is appointed, whoever he or she might be, must command the respect of the children’s sector. I know that Parliament, children’s charities and children’s services will follow this appointment keenly to ensure that they are fulfilling all the demands that they have to fulfil. I beg to move.

[Lord Ramsbotham]

I am grateful to the Minister for his letters and the draft framework agreement in which I note that the Children’s Commissioner is classified as a non-departmental public body and that it is for the commissioner to determine what activities to undertake in carrying out his or her primary function. I am therefore glad to see that the provisions that currently allow the Secretary of State to direct the commissioner’s work are to be repealed but, like the noble Baroness, Lady Massey, I do not feel completely confident about the appointment process. That is why I have added my name to her Amendment 59A, to which she has spoken so comprehensively.

Turning to my Amendments 59B and 59F, the aim of Amendment 59B is twofold. First, it is to ensure that the expectation of the UN Committee on the Rights of the Child that all children’s commissioners shall have the power to bring and intervene in court cases to ensure that children’s rights are respected is made explicit in the Bill. Legal cases can be complex, lengthy, expensive, intimidating and distressing for children, who are often unable or unwilling to take action themselves. In addition, courts are likely to be even less accessible to children following cuts to legal aid and proposals for further reform of legal aid and judicial review.

The second purpose is to put the commissioner on an equal footing with the Equality and Human Rights Commission in being able to bring cases under the main legal protection for children in this country, the Human Rights Act. It should not be presumed that the commissioner will automatically take up every case but it will be up to him or her to decide which ones to pursue.

Amendment 59F would expand on the list of those groups of children currently under the remit of the Office for the Children’s Rights Director to whom the Children’s Commissioner must provide advice and assistance. At present, Clause 86 prohibits the commissioner from providing advice and assistance to children living away from home or receiving social care who are not within the group defined in Clause 93. As I have seen all too often, there is considerable inconsistency in how children in custody or migrant children are looked after by those responsible for them. I have not had the same practical experience of trafficked children but, in view of their vulnerability and possible legal needs, it would be invidious to leave them out of this proposed addition.

Finally, more generally, as the Bill has progressed—and particularly in relation to the best endeavours rather than duties that the Government expect to be sufficient demand on local authorities and others to ensure delivery of EHC plans and other SEN provision—I see the need for an informed, independent monitor to ensure that those best endeavours are resulting in what the Government expect. As I have said previously, the code of practice is full of “musts” without being specific about how a “must” is to be implemented or overseen. I suggest that the role of overseer of best endeavours and musts is a natural addition to the responsibility of the Children’s Commissioner, being entirely in line with new Sections 2(1) and 2(3)(a) of the Children Act set out in Clause 86. New Section 2(1) states:

“The Children’s Commissioner’s primary function is promoting and protecting the rights of children in England”.

New Section 2(3)(a) states:

“In the discharge of the primary function the Children’s Commissioner may, in particular … advise persons excising functions or engaged in activities affecting children on how to act compatibly with the rights of children”.

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[Lord Ramsbotham]

I am sorry to delay proceedings, but can the Minister, in the light of what he has just said, assure me that an incoming commissioner will at least be made aware of that provision, and that the assurance that he has just given to the House will be repeated in that briefing?

[Lord Nash]

I am delighted to give that assurance to the noble Lord. Thirdly, including an explicit reference to initiating and intervening in legal proceedings would raise expectations that the commissioner will take up legal challenges on behalf of any individual or group who brings a matter to the commissioner’s attention. The Office of the Children’s Commissioner is clearly not resourced to operate in that way, and it could end up wasting time defending decisions not to take up particular cases.

I turn now to Amendment 59F, also tabled by the noble Lord, Lord Ramsbotham, which would add categories of children—–namely, children in custody, children who have been trafficked and unaccompanied migrant children—to the definition at new Section 8A, which is inserted by Clause 93. In the Government’s view, it is not possible to define precisely in legislation every interaction that the commissioner and his or her staff might have with children; nor would we want to. What the legislation seeks to do, therefore, is to put down some clear markers that are designed to achieve particular objectives.

First, as noble Lords will be aware, there is a provision that prevents the commissioner investigating individual cases. This is specifically to avoid the commissioner getting swamped with individual casework at the expense of his or her strategic role. John Dunford’s report was clear that where commissioners had taken on a full ombudsman’s role, it had reduced their impact.

Secondly, as recommended by John Dunford, we have included provisions in the legislation that ensure, as far as possible, that the support provided to children within the Children’s Rights Director’s remit can and will continue under the new arrangements. Beyond that, we do not wish to try to enshrine in legislation what level of support the commissioner should provide to individual children who may contact the commissioner or his or her staff. It is inevitable, as now, that children will contact the commissioner through, for example, the OCC’s website. Where they do, we of course expect the commissioner to offer appropriate help.

In many cases, that help would involve signposting the child to information or support. In others, it would involve helping the child to access an existing complaints or advocacy service, while in other cases it may involve the commissioner providing support that is similar to the “advice and assistance” function that the CRD currently provides. Ultimately, if the commissioner felt that the child’s case highlighted a matter of wider strategic importance, he or she could conduct an investigation into that issue. Our view, therefore, is that it should be for the commissioner to determine what level of support to provide to children when they approach him or her. That is why we do not wish to describe how the commissioner should interact with children in legislation, beyond the two exceptions mentioned earlier.

I do not therefore believe that it is necessary to extend the definition at Section 8A to include the groups of children that the noble Lord proposes. The commissioner will have wide-ranging functions and powers to give him or her the flexibility to support children as he or she deems appropriate in the exercise of the primary function of promoting and protecting children’s rights. Many of those children will, in fact, already be covered by Section 8A because they are living away from home and/or are in receipt of local authority services. For example, children on remand to youth detention accommodation are treated as looked-after children.

For children in custody, there are already adequate complaints, grievance and disciplinary systems in place, which the noble Lord will be familiar with, in young offender institutions, secure training centres and secure children’s homes to enable young people to resolve issues relating to their detention. Advocacy services are also provided in YOIs, STCs and SCHs to assist young people in navigating the complaints, grievance or disciplinary systems. Advocacy is provided by Barnardo’s in young offender institutions and secure training centres, with local arrangements in place in secure children’s homes. If a young person is not satisfied with the outcome of a complaint, they are able to refer the issue to the Prisons and Probation Ombudsman, the statutory monitor or the local authority.

Not extending the advice and assistance role to children in custody does not mean that the commissioner cannot investigate matters within the juvenile secure estate as part of a wider investigation. In fact, the commissioner has already done so—for example, with the commissioner’s inquiry into the support available in the youth justice system for young people with mental health issues. So far as the Children’s Commissioner looking at new SEN support in custody is concerned, the key plank of these reforms is to make it clear that the Secretary of State cannot direct the Children’s Commissioner. However, if he or she wishes to consider the SEN reforms, he or she is of course able to do so.