Children and Social Work Bill [HL]

Lord Ramsbotham Excerpts

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

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

My Lords, in Committee, quite rightly, we had a substantive debate about the importance of the mental health of looked-after children and care leavers. The Government share the views of noble Lords about the need to ensure that the mental health and emotional well-being of this vulnerable group of children and young people are given as much consideration as their physical health. As my honourable friend the Minister for Vulnerable Children and Families explained when he met Peers last week, we have reflected on the points raised in Committee. As a result, we have tabled an amendment to Clause 1 to put beyond doubt that promoting the health and well-being of looked-after children and care leavers will mean promoting their mental and physical health.

[Lord Ramsbotham (CB)]

My Lords, I shall speak to Amendment 4. I am very glad that the Government have tabled Amendment 1, which is the burden of much of the intention behind my Amendment 4, although my amendments spell out some of the mental health descriptions, which, under the heading of mental health needs, are not always apparent.

Perhaps I may start with a plea to the Minister that in future, Bills be handled differently from the way in which this one has been. We got extremely short notice of Second Reading immediately after the Queen’s Speech and then, immediately before Grand Committee, we were bombarded with documents, papers and briefings. Those of us who have no research or clerical support, for example, have to spend a considerable amount of time perusing those in order to understand what is being said so that we can play our part in the purpose of this House, which is to revise and scrutinise legislation.

We complained about that in Grand Committee but, lo and behold, during the short return between the two recesses we again received a number of briefings and letters, and this past week has been absolutely mad. Ministers gave three government briefings last Wednesday. I am not complaining about that, but I ask Ministers to remember that others have diaries and that it is not always possible to change with the rapidity that is expected. Also, there has again been a deluge of government amendments, government briefings and government papers, which suggests to me two things: first, that the Bill was not properly thought through before it was introduced; and, secondly, bearing in mind what was said in Grand Committee, that no impact assessment of any of the measures was carried out—a complaint we have made several times before. An impact assessment does not just say that you either do it or not. It should consist of an analysis of the outcomes of doing it or not, so that those of us not coming at it from a party-political angle can make judgments based on the facts as they are given.

What has also disturbed me during the passage of the Bill is the number of practitioners, including organisations such as the Association of Directors of Social Services, and others working in children’s services, who have tabled amendments and made appeals because they do not feel that they have been consulted, or, if they have, that any of their advice or experience has been listened to. That is really not a healthy basis for important legislation about vulnerable children.

The other thing that has come through strongly—I am very glad that the Government have tabled Amendment 1, because it reinforces the point—is that unfortunately, since the demise of the Social Services Inspectorate, responsibility for children’s social care has passed to the Department for Education. Yet when you talk to the people working in the delivery of children’s services, you find that most of the problems they face are more to do with health, emotion, behaviour and well-being than education. Indeed, preparing children so that they are in a fit state to be educated—mentally as well as in every other way—occupies a great deal of their attention. I am worried that more emphasis is placed on the educational direction of social work and that there is not a more apparent cross-government approach, working with the health industry in particular.

Amendment 4 is designed to spell out in more detail the conditions that children in care and other vulnerable children present. It is based on a paper published by the British Psychological Society in 1915 called, Children and Young People with Neuro-Disabilities in the Criminal Justice System. Unfortunately, we have become used to using the phrase “learning disability”, which carries an understanding of a more serious lack of ability to comprehend than some of the conditions in the amendment. The reasons for this go back to the marvellous paper prepared by Baroness Warnock way back in the 1970s in which she spelled out conditions warranting special educational needs status and therefore special treatment. That list was by no means exhaustive but since her paper there has been a great deal more research, and there is now a great deal more understanding of the various conditions grouped together under the phrase “neurodisability”, such as ADHD, dyslexia, and autism. I am strongly of the belief that all of these conditions—which have now been listed by the British Psychological Society—should be better understood. You need only go and talk to the director of a children’s home to find that it is those conditions that give them greatest trouble.

I am very glad that since Grand Committee, there has been a meeting between officials in the Department for Education and the Royal College of Speech and Language Therapists. In Grand Committee, I spelled out the need for the assessment of speech, language and communication difficulties on the grounds that inability to communicate is the scourge of the 21st century and means that too many of our children are unable to communicate with their teachers and therefore engage with education. There is now an assessment programme, carried out, I hope, for all children in this country before the age of two by health visitors who have been trained by speech and language therapists. The aim is to ensure that a plan can be made to introduce treatment that will enable that child to engage with education in five years’ time, when they start primary school.

Officials from the department have also spoken with the National Association of Virtual School Heads, which I must admit I had not heard of—I was slightly worried when I saw the word “virtual”, because I thought that either you are a school head or you are not. Apparently, however, the virtual school heads have a very valuable role in this area, as does the expert working group on mental health.

I am glad that the Royal College of Speech and Language Therapists has been brought in. They are the best people to advise on looking after children and to advise the Government on how to ensure that children, and those working with them, have access to the communication services they so badly need, particularly children suffering from neurodisability orders. Therefore, I am seeking in this amendment the Minister’s undertaking that, in addition to the bald statement in Amendment 1 about improving access to mental and physical health treatment, he will agree to spell out the conditions that so dominate the lives of those responsible for delivering children’s services and ensure that local good practice—which I know his officials are aware of, because it has been listed to them by the Royal College of Speech and Language Therapists—is turned into national good practice, so that all children can take advantage of what has been done in some parts of the country.

[Baroness Tyler of Enfield (LD)]

My Lords, I will speak to Amendment 8 in my name and indicate my support for Amendments 4 and 5, also in this group. In addition, I warmly welcome Amendment 1, which the Government have tabled in response to discussions in Committee. The addition of mental health to the corporate parenting principles is an important step forward towards ensuring that mental and physical health are treated with equal importance by local authorities when they are making decisions about the services and support available to children in care. The Minister’s amendment, therefore, is an important signal of principle—but principles alone will not improve the outcomes for children in care.

My amendment is designed to ensure that we can achieve some practical improvements to the care that children receive. It introduces mechanisms that will ensure that the mental health needs of children entering care are properly assessed and that they have access to specialist support if this is needed. Basically, the amendment has two elements: first, a mental health assessment for children entering care, carried out by a qualified professional; and, secondly, a designated health professional in each local authority who has strategic oversight of the outcomes of the assessments and matches those with the services that are available for children in care to support their needs.

In short, this amendment seeks to establish a mechanism that will identify children’s needs early on, refer the children to the right services and ensure that services exist that children in care are able to access—and access easily. This joined-up approach is supported by the Alliance for Children in Care, a coalition of leading children’s charities, as well as the Royal College of Nursing, the Royal College of Paediatrics and Child Health, and the Royal College of Psychiatrists.

--- Later in debate ---

[Lord Nash]

We will certainly draw attention in the statutory guidance to all these conditions and their importance. We are reluctant to encourage people to assess everyone for all these conditions, if the noble Lord sees what I mean.

[Lord Ramsbotham]

I thank the Minister for what he has said, but it is not assumed that everyone should be assessed for all these conditions. Rather, they were not recognised in Warnock and have therefore not been recognised as specific conditions in the criteria for special educational needs. It is merely listing them as those that should be included in the SEN description in future.

[Lord Nash]

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

--- Later in debate ---

Moved by

[Lord Ramsbotham]

3: Clause 1, page 2, line 6, at end insert—
“( ) to promote access to legal advice and representation for children and young people, including independent advice and representation where appropriate.”

[Lord Ramsbotham]

My Lords, this amendment seeks to include a duty to promote access to legal advice and representation for children in care in order to safeguard and promote their welfare and future life chances. It seeks to do that on the face of the Bill.

Local authorities, in their role as corporate parents, have a particular obligation to promote meaningful access to legal services for the children in their care. Recent evidence presented to the Refugee Children’s Consortium suggests that it is not enough for access to legal advice to be included in a child’s care plan. There should instead be an active duty to promote access whenever needed. For example, children may need access to legal advice in regard to accessing appropriate education in their area if they have special educational needs; to have a voice in family law proceedings that concern arrangements for their care; to regularise their immigration status; or to claim compensation where they are a victim of crime, including human trafficking.

In the concluding observations of the United Nations Convention on the Rights of the Child’s recent periodic report, it was noted that some children in care do not feel listened to, and that unaccompanied, migrant and asylum-seeking children may not receive independent legal advice. I am particularly concerned that children are missing out on opportunities to resolve their immigration status before they turn 18 because of the limited provision of legal advice and the difficulty of finding independent and reliable advice providers. A child without a way to regularise their immigration status in local authority care becomes a young person without support at 18, and now will be able to appeal against deportation only once they have been returned to their country of origin under the terms of the Immigration Act 2016.

My reason for proposing this subsection is that it is yet another example of where the solution does not seem to lie in the hands of the Department for Education alone, but requires co-operation and co-ordination with the Home Office and the Ministry of Justice. I therefore hope very much that the Minister will feel able to accept the amendment and turn it into a government amendment in due course. I beg to move.

[Baroness Lister of Burtersett]

My Lords, I rise to speak in support of this amendment, especially in relation to unaccompanied migrant children. I will not repeat what I said in Committee, especially around the regularisation of immigration and citizenship status, but will simply emphasise—here echoing the noble Lord—its importance from the perspective of meeting our obligations under the UN Convention on the Rights of the Child.

In an earlier report, the Joint Committee on Human Rights, of which I was then a member, underlined the importance of access to qualified legal advice and representation to compliance with Article 12 of the convention, which stresses that children must be,

“provided with the opportunity to be heard in any judicial and administrative proceedings”,

affecting them. The Equality and Human Rights Commission highlighted this as a priority issue for implementing the concluding observations of the UN Convention on the Rights of the Child, to which the noble Lord referred. It calls on the Government to expedite the promised review of the LASPO Act to assess its impact on children. Here it is echoing the committee itself.

In yesterday’s Written Statement on the UNCRC the Minister for Vulnerable Children and Families encouraged colleagues to reflect,

“the voice of the child fully in the design and implementation of policy”.—[Official Report, Commons, 17/10/16; col 23WS.]

In the light of that, I hope the Minister will be able to respond positively to the amendment moved by the noble Lord, Lord Ramsbotham.

[Lord Nash]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for this amendment and for his contribution and that of the noble Baroness, Lady Lister.

In local authorities where the ethos of corporate parenting is strongest—for example, in North Somerset and Trafford—the views of looked-after children and care leavers are at the heart of how local services are created and delivered. Along with the Minister for Vulnerable Children and Families, I applaud the way in which many local authorities, through their children in care councils and care leaver forums, listen and respond to the views and needs of this vulnerable group.

The corporate parenting principles are designed to ensure that the local authority as a whole has regard to the need to act in the best interests of the child whenever it carries out functions in relation to looked-after children or care leavers. Considering this together with the existing functions to ensure that the rights of children and young people are promoted, I do not believe that amending the principles in the way suggested is necessary. However, I am aware of the report on advocacy services for looked-after children by the Children’s Commissioner, which highlighted that 55% of looked-after children were unaware of their right to independent advocacy support. Local authorities have a duty to provide assistance for advocacy services for all looked-after children, children in need and children in care, and this includes making them aware of this provision. I do not believe that further legislation would help here.

We need to work directly with local authorities to improve good practice and raise awareness. I will commit to the noble Lord, Lord Ramsbotham, that we will do so. Some local authorities are already very good, but others are not; as the Children’s Commissioner made clear in her report. It is about raising the game of the poorer authorities to meet their existing responsibilities. Indeed, while I sympathise with the underlying intention behind the noble Lord’s amendment, I believe that it may risk introducing an unhelpful adversarial dimension to the relationship between children and young people and their local authority as corporate parent, which I am sure the noble Lord would not wish to see.

The framework for care planning and the transition from care to adulthood that exists already gives children and young people routes for voicing their views. These include court-appointed guardians, their social worker and a named IRO who follows their case, meets the child privately before the formal meeting to review his or her care plan, and also advises the court.

A key role of IROs is to resolve problems arising out of the care planning process. Every local authority should have a formal process for IROs to raise concerns and to ensure that those concerns are respected by managers. This is referred to in our guidance as the local dispute resolution process. An IRO has the statutory power to refer the case to Cafcass at any stage if he or she considers it appropriate to do so. He or she may consider it necessary to make a concurrent referral to Cafcass at the same time that he or she instigates the dispute resolution process. There is clear guidance on this point in the Children Act 1989 statutory guidance on care planning and in the IRO handbook. That handbook, which is statutory guidance that local authorities must comply with, also makes it clear that each local authority should have a system in place that provides IROs with access to independent legal advice. Skilled independent advocates who speak on behalf of looked-after children also work with the legal service. They provide the independent advice and assistance sought by this amendment.

Local authorities are required under Section 26A of the Children Act 1989, which deals with advocacy services, to make arrangements for the provision of assistance to looked-after children and care leavers for advocacy and representation support, and local authorities must make these arrangements known publicly, as they see fit. I am not therefore convinced that adding a further principle on a specific area as regards services or support, which is already the subject of a statutory duty, is necessary.

The corporate parenting principles and the needs articulated in Clause 1 are about improving the culture and ethos of local authorities so that, as far as possible, children are treated with care and as a good parent would, so that the children do not feel that they are being looked after by an impersonal corporate body. The way to do that is not to create expectations of legal representation for all looked-after children and care leavers when disputes can be resolved without escalating it to lawyers. That means using IROs and advocates effectively and making better use of children in care councils, which all local authorities will have. I hope that the noble Lord will feel sufficiently reassured to withdraw his amendment.

[Lord Ramsbotham]

My Lords, I am grateful to the Minister for that reply and to the noble Baroness, Lady Lister, for her comments and remarks. I am concerned by the content of the UNCRC’s fifth report because it repeats so many criticisms that were contained in the fourth report that do not appear to have been actioned. I am also particularly concerned about the change in status of immigrant children in care, which was included in the Immigration Act 2016. The comment that they lacked legal advice before they were deported is not something of which we should be very proud.

I hope, therefore, that in considering all the things that he has said to me, the Minister will go back and assess the local area legal provision, particularly relating to immigration, because I give notice that I shall raise this question again at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

--- Later in debate ---

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

I should advise the House that if Amendment 18, is agreed to I cannot call Amendment 19 due to pre-emption.

[Lord Ramsbotham]

My Lords, I rise to move Amendments 17 and 19. The purpose of Amendment 17 is both to ask to ask the Minister to clarify the intention behind subsection 3(b) of new Section 23CZB and to highlight a potential loophole which could risk local authorities opting out of their duties to former relevant children. It would appear that the intention behind that subsection is to enable a local authority to cancel the appointment of a personal adviser if at any time a former relevant child says that they no longer want one. However, the wording of the subsection is ambiguous. The phrase “if earlier” leaves open the possibility that a local authority might interpret it in a way that would enable it to refuse advice and support to a former relevant child who had previously said that they did not want a personal adviser but at a later stage requested advice and support. This opens another possible loophole of local authorities requesting that former relevant children sign a form on leaving care at 18 to say that they no longer need support. Would the Minister therefore be kind enough to clarify the Government’s intention and resolve any possible ambiguity in the wording of the legislation?

My Amendment 19 is made completely unnecessary by government Amendment 18, and so I propose not to press it.

[Lord Nash]

As I understand it, the noble Lord is asking us to clarify that when we say that care leavers will have the right to this every year, they will have the right to it every year and there is no way that local authorities can get out of it. That is our intention, and if it is not clear in the legislation then we will change it. I think I can give the noble Lord the assurance he needs: we do not think there should be any way that local authorities should invite an 18 year-old to contract out of this right.

[Lord Ramsbotham]

I do not wish to prolong this, but it is practitioners who have raised this question with me because they are unclear. Although young people have the right every year, it is an opportunity basis that they are considering.

[The Lord Bishop of Chester]

My Lords, I thank the Government very much for the change they are bringing in—

--- Later in debate ---

[Lord Ramsbotham]

I am grateful to the Minister. I am sure that this is capable of resolution. It just seemed an irritant rather than a major issue, but one which it would be unwise to let go. Therefore, I will not press my amendment.

Amendment 14 agreed.

--- Later in debate ---

[Baroness King of Bow (Lab)]

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

[Lord Ramsbotham]

My Lords, my Amendment 29 seeks to use Clause 8 to mitigate the possible impact of provisions elsewhere in the Bill on a group of children described by the phrase,

“there being no person who has parental responsibility for the child”—

in other words, looked-after children. I refer in particular to looked-after children in custody, of whom the noble Lord, Lord Laming, in his report, estimated that there were approximately 400 at any one time, 100 of whom were on remand. Although this is not in itself a large number, it adds up to slightly less than half the numbers of children currently in custody. This ratio accentuates the need to consider their position.

Currently, all children remanded into custody are automatically granted looked-after status for the duration of their time on remand. Children in care retain this status throughout their custody. However, in Grand Committee the Minister suggested that this could be removed by other clauses in the Bill. Looked-after children in custody show greater levels of mental health needs than other incarcerated children, need greater levels of emotional and practical support, and respond less well to behavioural incentive schemes and resettlement planning. As a group, they already face problems in engaging local authority support, and it would appear to be at best counterproductive to enable local authorities to opt out of their duty to support those looked-after children who happen to be in custody. This is yet another cross-government matter, and I wonder whether the Department for Education has discussed the possible effect of this with the Ministry of Justice, which aims to reduce reoffending.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, like my noble friend, am very grateful for government Amendment 20, which we fully support. The noble Baroness, Lady Walmsley, and my noble friend Lady King spoke eloquently about children adopted from care outside England who are now resident in England, and on the need for educational equality. We, too, very much welcome the Minister’s intention to bring forward amendments in the other place. Obviously, they will come back to your Lordships’ House in the new year.

The noble Lord, Lord Ramsbotham, made a very telling point about the particular challenges of looked-after children in custody. At heart, it is a question of whether the Minister’s department’s intention is consistent with that of the Ministry of Justice. It would be very helpful if, between now and Report, the Minister would enable some discussions to take place with the noble Lord, Lord Ramsbotham, just to make sure that there is absolute consistency, because I very much take the point that he raised.