Children and Social Work Bill [HL]

Lord Warner Excerpts

Tuesday 18th October 2016 Lords Chamber

[Baroness Pinnock (LD)]

My Lords, it seems to me fairly demeaning that the state cannot collectively care for vulnerable children without resorting to a profit motive. In all the private meetings we have had with Ministers in regard to the Bill, we have been reassured that there is no background intention on the part of the Government to enable services to be outsourced to give a profit motive. That would require a change in legislation. The period of changes that we are now undergoing needs guarantees and I point to a report that I believe was in the Guardian newspaper a couple of days ago, which refers to Sandwell Council having been ordered to contract out its children’s services. It will mean,

“that services, including child protection investigations, making applications to the courts to have children removed from their families and the management of children in need plans will be outsourced to an independent organisation, and accountability will only be back to the council through a contract”.

I thought we would have learned enough from the academisation of schools to know that contracts do not necessarily provide sufficient accountability, either for financial management or—certainly not—for providing services in the best interests of children. We are talking about the most vulnerable children. As far as I can find out, no other country allows this sort of intrusion by a private company into the lives of vulnerable families, and decisions about the welfare and protection of children to be taken by private companies which are not directly accountable to the state, either to the Government, or in this case to local authorities. It raises a fundamental principle. As we have discussed at great length throughout the Bill, we are all very concerned to provide the best possible protection and care for vulnerable children. However, we are possibly undermining that by allowing and enabling the outsourcing of children’s services for a profit motive, which by its very nature may result in children not being first and foremost in the mind of the company undertaking the work.

For those reasons, we totally support the amendment in the name of the noble Lord, Lord Ramsbotham. We hope that the Minister will be able to give a categorical assurance that the outsourcing of children’s services for profit will not take place, and that, failing that, he will include such an assurance as an amendment at Third Reading.

[Lord Warner (CB)]

My Lords, I shall speak to Amendments 33 and 35, to which I added my name. It is very clear from the Bill that government Amendment 54 is much narrower than Amendment 33. I do not want to get into the detail of that amendment—we will discuss it in due course—but it relates only to the power-to-innovate section. From my reading of the Bill, it does not have the more general effect that the amendment of the noble Lord, Lord Watson, does. So there is still an issue, even if one accepts the good offices of the Government on Amendment 54.

Perhaps we might explore a little more the issue of profit. We started to do this in Committee and I think that we got into a bit of a muddle. I am not a staunch supporter of public monopolies, so I do not have a problem with a degree of competition. I was at the event that LaingBuisson organised for the department on the whole issue of market-making, particularly in relation to failing organisations. I am not sure whether the Government have ever published the report that LaingBuisson produced—but it certainly did produce a report. I spoke at the conference, where there was a strong feeling that there were certain functions that needed to be carried out by a state body. I think that the question of whether you could contract out some of those services to a not-for-profit social enterprise or a voluntary organisation started to get a bit fuzzy, but there was a very strong core feeling that some of the services charged with statutory child protection were not areas that you could contract out. Then we went through a range of services where people were more or less comfortable with the idea of a degree of profit-making.

Here, it is important to be very clear about what we mean by profit-making. I mean profits that are available to be distributed to the shareholders of the organisation. I do not think that we could run very good services for children in their entirety if we did not accept some voluntary organisations running the services on a contract basis. However, that is on the basis that they are perfectly entitled to create a surplus in some of their activities in order to reinvest that money in the services they provide. That is a perfectly reasonable proposition, and we certainly do not want to put anything in the Bill that stops people having a contract with local authorities, not to make profits in the well-understood sense of profits to be distributed to shareholders but to run the services efficiently so that they can engender some kind of surplus that can be reinvested to make the services better, particularly as demand for some of those services increases over time. So the Government need to come clean about what happened when they had this interest and set LaingBuisson loose on the whole market-making issue, because it has raised a great deal of concern in the wider world of children’s social care about their intentions. A little more clarity on what they are in this area would be very welcome.

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Moved by

[Lord Warner]

40: Clause 12, page 12, line 10, at end insert—
“(c) handling the implications for a local authority’s discharge of their safeguarding responsibilities in respect of any judicial decision-making in a particular review.”

[Lord Warner]

My Lords, we now turn, slightly later at night than I would have liked, to Amendment 40 in my name, which seeks to encourage the Secretary of State to cover in guidance what happens when the actions of a court have implications for the way that a local authority discharges its safeguarding responsibilities but these cannot be considered by the new Child Safeguarding Practice Review Panel.

I have framed this amendment in the way I have because of my considerable concerns about what happened in the tragic case of Ellie Butler, who was placed by the court with her father, who brutally murdered her some months later. We went over that ground in Committee and I am grateful to the Minister for the letter he wrote to me on 9 September—I think he copied it to other Members who spoke in those Committee debates. However, that letter raises more questions than it answers.

Leaving aside the devastating consequences of the judge’s error of judgment—for which, incidentally, I would say a social worker would have been publicly crucified—the case raised some serious systems issues that the new review panel apparently cannot explore, because the Government are ruling that it would be unconstitutional for the panel to review the conduct of a judge. Yet the Minister’s letter makes it clear that the guidance in Working Together, published in 2015, does not specify that the judiciary is exempt from the serious case review process. We have here a conflict between what the Government’s guidance says and what the Minister is saying during the passage of the Bill.

This ruling by the Ministry of Justice that it is unconstitutional seems to mean that no learning can take place from erroneous behaviour by the courts. This is particularly important in this case, because of the judge’s rulings in relation to the local authority, which I think has also been discussed between the London Borough of Sutton, the MoJ and the Minister’s department. The judge’s ruling in relation to Ellie Butler meant that the London Borough of Sutton, which had been responsible, with some success, for protecting Ellie became debarred from exercising the safeguarding responsibilities conferred on it by Parliament. Sutton had been exercising its statutory duty to safeguard children in the borough—a duty, as I say, conferred on it by Parliament.

However, the judge appointed two private independent social workers to review the local authority’s decision-making. These seem to have advised that it was safe to place Ellie with her parents, a diametrically opposed view from that of the local authority which had been safeguarding this child. These social workers, commissioned by the court, appear to have had no background experience of Ellie’s situation and to have been a small partnership without the back-up resources and supervision, including legal resources, of a local authority. My understanding—the Minister may want to confirm or deny this—is that entities such as those independent social workers are unregulated. They will be on the register as a social worker but we know no more about them. They are on a panel list but there is no regulation, as I understand it, of partnerships of independent social workers. I would be grateful if the Minister and his department can tell me whether that is correct.

It gets worse, because the judge also seems to have ruled that the local authority should desist from contact with the family, thereby effectively debarring it from discharging its obligations to safeguard Ellie—or, indeed, the other child who, as I understand it, was in that household. Again, I understand that the various agencies were also told to remove information about the father from their records. This is all in the public arena. I am not making this up; it is what happened in this particular case. Sadly, history suggests that there may well be other Ellie Butler cases of some kind, which is why the Government are setting up a very important Child Safeguarding Practice Review Panel at the national level.

If the Government are to set up a new and more powerful national child safeguarding review panel, which I and I think other Members of this House totally support, it seems somewhat bizarre to prevent it exploring behaviour in the courts that could put vulnerable children at serious risk. For example, how are the courts to learn the errors of their ways and be provided with guidance and training? Perhaps as worrying is the clear lesson from this case that a court can apparently set aside a statutory duty placed on local authorities by Parliament to safeguard children in their area. To say the least, this is a very confusing situation in which to place local authorities and their hard-working social workers.

I know that there is supposed to be, or may have been, a meeting between the London Borough of Sutton and the President of the Family Division, but I am most intrigued about what the Family Division will do regarding this case. Will it give guidance to judges? Will it affect the training of judges in cases of this kind? Who knows? What we now have is a cloak of silence over what happens in the courts when something goes badly wrong.

My belief is that the Government should at the very least accept an amendment of the kind that I have produced. It would require the Secretary of State to make it clear in guidance what actually happens if the courts are to be excluded from the work of the new safeguarding review panel. How are social services departments to behave and learn from that experience? What relationship will there be with the Ministry of Justice and the courts for learning from mistakes, which will from time to time inevitably be made in the courts? Judges are human beings and not perfect. From time to time, they make mistakes. At the least, we have to make it clear in the guidance that goes out to local authorities about this new panel how they should deal with a situation of the kind that arose in this case. I beg to move.

[Baroness Pinnock]

My Lords, I thank the noble Lord, Lord Warner, for raising this issue. It looked a fairly innocuous amendment when I read it in the Marshalled List but out has come a really powerful case, based on an actual case that went before the courts, for a change in the Government’s legislation. So far as I can tell, there have been no answers as a result of that appalling tragedy, which was partly brought about by the judgment of the courts. The noble Lord, Lord Warner, is challenging the Government to be as responsive to errors in the courts as they are to errors in social services safeguarding practices. There is a case to be answered and I look forward to the Minister’s response.

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[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.

Amendment 40 withdrawn.