Illegal Migration Bill

Lord Scriven Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Lord Scriven]

87: Before Clause 15, insert the following new Clause—
“Children Act 1989(1) Upon entry or arrival into England, every child to whom section 3 of this Act applies must have afforded to them all rights under the Children Act 1989.(2) Nothing in this Act may require any act or omission that conflicts with or undermines the obligations, duties or responsibilities of the Secretary of State under the Children Act 1989, in particular the principle that the child’s welfare be a primary consideration and that particular regard be given to the child’s wishes and feelings.(3) This Act must not cause any delay in ensuring that unaccompanied children become looked after as soon as the child's age has been determined.”Member's explanatory statement
This amendment ensures all children who enter or arrive in England under section 2 are afforded the rights available under the Children Act 1989. It also provides that well-established duties under that Act are not undermined by the requirements of this Bill.

[Lord Scriven (LD)]

My Lords, Amendment 87 is in my name, and I thank the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Berridge, and the noble Lord, Lord Touhig, for adding their names to it. We on these Benches support all the amendments in this group. With the exception of the amendments in the name of the noble Baroness, Lady Meacher, who wishes to remove Clauses 15 and 16 from the Bill—that would be the ideal solution but is unlikely to win the day—they try to fully understand the relationship between the Home Secretary’s new powers as indicated in Clauses 15 and 16 and the obligations and duties of local authorities to children as laid out in the Children Act 1989.

The statutory scheme for looked-after children has been carefully developed over many decades, with safeguards added in response to learning from systematic failings and research into different aspects of child well-being. Empowering the Home Secretary to radically change that statutory scheme and the provisions around it on the basis of how a child arrives in a local authority area is both radical and untested; it restructures England’s child welfare system.

Where there was total clarity on the interests of the child, the clauses bring ambiguity and confusion. I am confused, as are many other noble Lords, about how the powers given to the Home Secretary in Clauses 15 and 16 are in line with the duties and obligations of local authorities. Unaccompanied children seeking asylum are children in need under the Children Act 1989, and local authorities have specific duties to them and specific powers—for example, under Sections 17 and 47. Under Part 1 of Schedule 2 to the Act, certain activities have to follow.

Section 22C of the Children Act sets out the ways in which local authorities are to accommodate and maintain children. Section 23ZA requires local authorities to regularly visit looked-after children. Sections 25A and 26 place a duty on local authorities to appoint an independent reviewing officer for looked-after children and to make arrangements for independent advocates for them.

The first question I wish to tease out is: when children are removed—either put into the Home Office accommodation initially or removed at the request of the Secretary of State—do they still have looked-after status? If so, how will provision be made for local authorities to carry out the duties they have to looked-after children? The significant question is: what happens when the local authority deems that the Home Office accommodation is not in the best interests of the child, as the statutory scheme suggests? Under this provision of the Bill, can the local authority override the Secretary of State’s request to move a child into certain accommodation and move them into accommodation that is in their best interest? It is a key question that was asked in Committee which the Minister did not answer. The Minister said that he would write to noble Lords on this issue, and I am very pleased that at 12 pm today a letter dated 3 July arrived in our inboxes.

However, that letter creates further confusion and does not answer the following central questions. How will local authorities be able to conduct all their duties under the Children Act 1989? Why does the Secretary of State’s new power lie in the provisions of that Act in terms of where a child shall be put, particularly in terms of the best interests of the child? We really need clarity to be able to understand the interrelationship and how local authorities can carry out their full legal duties under the Children Act 1989 to put the interests of the child first. The Minister was unable to clarify this in Committee and it is important that those issues are now clarified on Report. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I declare that I was President of the Family Division and tried endless care cases involving local authorities. I am extremely concerned about Clauses 15 and 16 and their interrelation with the Children Acts, particularly the Children Act 1989. As the noble Lord, Lord Scriven, has already pointed out, the Secretary of State does not have parental responsibility for children.

I pointed this out to the Minister several times in Committee. So far, and I do not mean to be impolite, I am not sure that either he or—more importantly—the Home Office have put their minds to the implications of parental responsibility. I have not seen a copy of the letter that apparently was sent. It would have been helpful if I had seen it before I came to this House, because since I have been here I am afraid that I have not been looking at my emails.

The local authority is, under the Children Act, the only corporate parent and no one else can be. If the local authority goes to the court and seeks a care order under Section 31 of the Children Act 1989, there will be a court order requiring the local authority to keep the child and place the child in appropriate accommodation. I ask the Minister: has the Home Office has reflected on what Clause 16 is saying—that the Home Secretary can take a child away from local authority accommodation and put that child somewhere else? Is it intended that this Bill is to override the Children Acts and create a new situation where parental responsibility is of no significance if the Home Secretary considers that a child should be dealt with by the Home Office and not a local authority?

This is a very serious legal situation for children. Although there may not be all that number of younger children, there are certainly some. Even a child of 16 is entitled to the care of a local authority. I just wonder whether the Government have thought through the implications of this. I do not believe that this matter will be taken to a vote, which I am rather sad about in a way, because I would like the Government to put their minds to the existing law—which, I have to tell noble Lords, a Conservative Government passed in 1989, and I was one of those who played a part in the legislation. I am extremely sad to see these two clauses.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

No; I am afraid I cannot provide that assurance, and the reason for that is obvious. We are dealing with a situation in which we have thousands of people crossing the channel, and we cannot tie the hands of the Home Office in dealing with this great problem that we all face. I say again that we are having to accommodate unaccompanied children out of necessity. My noble friend Lady Lawlor highlighted in her brave speech the Hobson’s choice that we face here. These children will not all immediately enter the care system on arrival in a small boat, simply because the Home Office does not have the powers set out in Clauses 15 and 16. It is right that we take steps to ensure that there is clarity, and I suggest to noble Lords that it is in the best interests of these children that we put in place these measures, which recognise the reality of the current situation.

On the basis of my explanation and the assurances I have given, I hope that the noble Lord, Lord Scriven, will be content to withdraw his amendment, and if the right reverend Prelate the Bishop of Durham is minded to test the opinion of the House on Amendment 89, I invite noble Lords to reject that amendment.

[Lord Scriven (LD)]

My Lords, I am sure that, like everyone who has listened to this debate, I am now more confused than when it started. Clarity has not been brought. I thank all noble Lords for taking part in the debate, including the noble Baroness, Lady Lawlor, who I completely disagree with; she really does not understand the concept of what safeguarding and the rights of the child are once the child is in the UK. That is the issue, and there is no evidence in any impact assessment or anything that the Government have done that says that protecting and safeguarding children under the Children Act 1989 is a pull factor. But I welcome the noble Baroness’s intervention and understand that she starts from a position that is, I am sure, very different from that of nearly everybody else in your Lordships’ House.