Children and Social Work Bill [HL]

Lord Warner Excerpts

Ping Pong (Hansard): House of Lords
Tuesday 4th April 2017 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I too welcome much of what the Minister has said, as well as the work undertaken by the Government and the Members of the other House, particularly their acceptance of the amendment of the noble Baroness, Lady King, on adopted children, as promised. The Minister’s last words highlighting the continued financial support for higher education institutions to train social workers are also very important and very welcome.

I share my noble friend’s concern about proposed new Clause 9 regarding secure accommodation in Scotland. I recognise that there is a crisis in the care of looked-after children. Since the death of baby Peter the number of children taken into care has risen year on year, and we anticipate that the number will increase even more steeply. There is pressure on foster placements and pressure on children’s homes in England and Wales. I recognise that it is sometimes better to send a child a long way from home if there is excellent and specialist provision to meet their needs. However, as a patron of a children’s advocacy charity, I know very well from young people themselves that what they wish for above all is continuity of positive relationships, so sending more children further away from home is always a matter of concern. I know that the Government are apprised of that principle. The thought that we are making it easier through this legislation to place more children out of England and Wales, far from their local authority—in Scotland—therefore causes me concern. The President of the Family Division of the High Court, Lord Justice Munby, said that this was something that needed to be considered, but he also said that there should be a joint Law Commission report into it. My concern is that it needs to be thoroughly considered. I would be grateful to hear from the Minister that, before this amendment is implemented, there will be thorough consultation to consider its implications.

On Amendment 14, on the improvement of standards for social workers, I agree that standards need to be improved. There has been a long-standing concern about the quality of education of social workers. I recognise that they have often not been fully equipped to practise when they have completed their courses. However, it is right to insist that the Secretary of State should consult with the social work profession and higher education institutions in developing these standards. The Minister was fairly reassuring on that point although he did not explicitly mention the higher education institutions. My concern is that there is a risk that ideology and strongly held personal prejudice can lead judgment in the development of social work. The role of the social worker is highly emotionally charged, and it always has been. These people step into the lives of families and children for understandable reasons. The widest possible consultation with academics and practitioners would avoid the risk that the prejudices of one individual or one group could shape the standards too sharply.

I recognise the benefits of the innovative training models such as Frontline, which the Government introduced. The Minister has been fairly reassuring on this last point so I will not go further on that. I do not intend to speak again this afternoon but I warmly welcome the next set of amendments and the introduction of statutory personal, social health and economic education. A long-standing concern is that teachers in schools are just not equipped to teach the difficult subject of sex and relationship education. I hope that by putting this on a statutory basis many more teachers will be properly equipped and children will get the education they need.

[Lord Warner (CB)]

My Lords, I too welcome what the Government have done in responding to some of the concerns that have been expressed about the Bill. They have shown their willingness to listen and to make amendments and I commend them for that.

I just want to raise an issue around secure accommodation. My warning lights always start flashing on the subject of children’s secure accommodation. It is very difficult to regulate this area and to ensure that good care is provided, because the unit costs tend to be extremely high. If we have now got to the point where we have to take children over the border—where they have to cross the Tweed to get their secure accommodation—we should start to be concerned. This sector has shrunk and shrunk and shrunk in England. This was starting when I was chairman of the Youth Justice Board, up to 2003, and it is very difficult to get people to work in it, to set the systems up and to ensure that they continue to be safe.

There is something to be said, not just for the point made by the noble Lord, Lord Ramsbotham, but for taking an independent look at this sector and its economic viability. This is an area where, in effect, you almost have to pay for spare places to be available because you do not know when a child is going to require that accommodation. The Government now need to have a long, hard look at this. The sector has been shrinking for some time; it has proved difficult to get the finances right and to secure good staff. People are doing their best, but things can often go wrong in this sector. It is very difficult to ensure that these places are regulated properly. The Minister might want to write later, rather than responding today, but will he and his department consider whether a review of the sector is long overdue?

[Lord Hunt of Kings Heath (Lab)]

My Lords, the Minister has paid due tribute to Members of this House for their contribution as the Bill was scrutinised some months ago. In return, the Minister’s willingness—and that of his colleague in the other place, Mr Edward Timpson—has been commendable and is much appreciated. There is no doubt that the Bill has changed quite considerably. I particularly welcome the fact that regulation of social workers is now to be undertaken by an independent body, subject to the oversight of the PSA. I also welcome the Government’s decision to accept that the innovation clauses which the Lords took out would not be reinserted in the other place. Essentially, they involved giving local authorities the ability to override primary legislation, so we have maintained an important principle.

The Minister has introduced a number of interesting amendments. I will follow other noble Lords in asking one or two questions. The noble Lord, Lord Ramsbotham, and the noble Earl, Lord Listowel, have raised important points in relation to secure children’s homes in Scotland and the amendments brought forward by the Minister. There can, of course, be no objection whatever to dealing with the technical deficiencies which have been identified, but there is a concern that, across the last six years, there has been a, I think, 22% reduction in secure accommodation places for children. There would be a concern if these provisions were used inappropriately to transfer young people across the border because there were not sufficient resources in England. I hope that the Minister can assure me that this is purely a technical provision, that the Government are actually committed to ensuring that there are sufficient places in England, and that young people are not sent unnecessarily long distances from their homes. As the noble Lord and the noble Earl said, that cannot do very much to improve the quality of their lives, which is the purpose of secure accommodation.

I recognise that the provisions on improvement standards for social workers are a logical outcome of the Government accepting the proposition that social worker regulation should come under an independent regulator. The noble Lord said some welcome words about the Government’s desire to encourage the development of a sector-led improvement body. Clearly, efforts have been made in this regard in the past that have not been deemed to work, but the Government are right to try to inspire another go at getting this right. The noble Lord will probably know that both BASW and UNISON have raised concerns about the Secretary of State setting standards and whether they are linked to the national assessment and accreditation scheme. I shall not go into that in detail, but clearly there is a concern among social workers about the way in which the scheme could be used potentially to penalise individual social workers. I hope that the noble Lord will set my mind at rest on that.

In taking forward these proposals on the establishment of a new regulator and the setting of standards and their assessment by the Secretary of State, I hope that there will be, as the noble Earl, Lord Listowel, said, full engagement with the sector, including with UNISON, BASW and other bodies. There is a particular role for the chief inspector of children’s services here. I look across the Floor of the House at the noble Lord, Lord Laming, who was a most distinguished chief inspector of social services a few years ago. It is a very difficult role comprising being a principal adviser to Ministers and being head of a profession while upholding the public interest. The chief inspector of children’s services has a very strong role to play in trying to pull the stakeholders together rather than necessarily just confronting them. I hope that she and the Minister will take this suggestion as one that is meant in the best possible way. In the end, if this provision is to work effectively, it is very important that we take the profession with us as much as we can on this journey of improvement. The Opposition fully support the Government in seeking to improve standards in the profession. That is why we support the broad thrust of the Bill.

The noble Baroness, Lady Pinnock, talked about training providers. There has been concern, particularly in the light of the debate on the higher education Bill, about who the providers might be. If the Minister could give some assurance about the quality of provision in social work training, that would be very helpful.

I am grateful to the Minister for his work on the Bill, the amendments he has brought forward and for the overall thrust of where we are now going, which we support.

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[Lord Deben (Con)]

My Lords, there is sometimes a moment for all sides to recognise a chance of real conciliation—and I think that this is it. As a practising Catholic who voted and spoke in favour of same-sex marriage, I hope that I may be in a position to refer to this. The fact is that the Government have brought forward something which can be agreed by all sides in a remarkable way. The amendments ought therefore to be treated in the elegant way in which they have all been presented—in other words, as probing amendments for the Government to say something more about their views.

This is a hugely difficult area because it is not only age-appropriate; there is also the question of it being situation-appropriate, as some young people have such a terrible experience of relationships that no age is young enough to teach them what might happen. I have rarely been as moved as I was when I was a Member of Parliament and used to go to my local youth prison and saw boys who could so easily have been one’s own children in a situation where they had done terrible things—but, given their backgrounds, you could not honestly blame them. You could say that they were guilty but you could not blame them for what had happened. I am also enormously impressed by those who overcome that sort of background. They are another group whom we ought always to think about. Schoolteachers have a real problem in trying to deal with all this.

We also have to be careful not to underestimate many of the other important decisions in life. The whole nature of religion and the contribution that religion gives must not be excluded because we are worried about one thing alone. We are very much in danger of moving from an entirely unacceptable position at one end to a position at the other end which excludes a different set of people from proper participation in what the Government seek to do. I therefore very much hope that my noble friend the Minister will take this as an opportunity to say that in our discussions, and in the listening mode which the Government are in, we need to come to an attitude that may last for a long time and stand the test of time. It will of course change because, within that, teachers will learn better how to balance these very real differences because they will be doing it more widely.

I am encouraged both by the statement of the Archbishop of Liverpool, which it was very worthwhile to read out, and the elegant way taken by those with whom one has had strong arguments in the past—the National Secular Society and others. If we can take this moment, capture it and ensure that we get the best out of it, this will be a very special moment for the future of education.

[Lord Warner]

My Lords, briefly, I congratulate the Government on bringing these amendments forward. They are a very welcome advance and I am extremely supportive of Amendments 12 and 13. All credit to the Minister and his colleagues for having the courage to grasp this nettle after so long and come forward with amendments. So it may seem a little churlish if I add a “but”. My “but” relates to Amendment 12B, which was so elegantly spoken to by the noble Baroness, Lady Walmsley. I want to enter into the spirit of the way in which she spoke to it to probe the Government a little on the issue of age and the ability to withdraw children from this education.

We have to recognise that there is a need to make some of this compatible with some of the other aspects on which we judge children: for example, the age of criminal responsibility. It would be extremely strange to give people a chance to withdraw their children from this kind of educational opportunity at an age which is older than the age of criminal responsibility, which is based on the principle of doli incapax—children not understanding the implications of what they have done. There are other bits of our social system that need to be taken into account when we write guidance on these issues for children.

We also have to remember that the state does not give parents an absolute right to do whatever they want with their children. The state does step in. It withdraws children from their natural parents when it thinks that they are being abused or that it is not safe for them to stay in the care of their parents. That is based on another principle, well set out in the Children Act 1989: the best interests of the child. We need to balance the principles of the best interests of the child and the willingness of the state to intervene when it thinks a parent is behaving seriously unreasonably and damaging a child. We have to make the rules in this area consistent with rules operating in other areas, such as the age of criminal responsibility.

So I hope that, while the Minister and his department are framing the guidance, they will be able think about these wider issues, including the ability of parents to withdraw their children from this kind of education. It may be that we have to set some point in time where we cannot accept that parents can withdraw their children from this—whatever set of beliefs they happen to hold. At the end of the day it is their children, not they, who are going to have to cope with the world that they are moving into. We have an obligation to think about children and not just about the rights of their parents.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise briefly to lend my support to this important group of amendments. Like the noble Baroness, Lady Massey, I think this is a historic occasion. Many people, including many distinguished noble Lords, have campaigned for this over many years. Like the right reverend Prelate the Bishop of Peterborough, I am very pleased that we are now talking about relationships and sex education in that order. It is something I spoke about in my maiden speech, and I am very pleased to see it introduced.

I shall make two quick points. The first is that, in the considerable number of debates we have recently had in your Lordships’ House on children’s mental health and during the passage of the Bill, we have heard about the strong link between relationship distress and poor mental health. It seems self-evident that supporting young people to develop relationships skills—conflict resolution, good communications, understanding about respectful relationships, the importance of friendship and family relationships, and expectations about what a healthy relationship looks like and what an abusive relationship looks like and what you need to do about it—is likely to lead to much better mental health and well-being for all young people, which is something I am sure we all want.

My second point is that good-quality relationships and sex education requires good-quality, competent and trained educators. At the moment, very few teachers have been given specific training in this area. On too many occasions the subject is picked up by rather reluctant teachers. Sometimes they are biology teachers, and sometimes they come from other disciplines. If we are to make a reality of this hugely welcome step forward, for which huge credit goes to the Government, it is vital that they look at the training and role of specialist teachers and, where appropriate, the role of specialist voluntary sector providers.

Children and Social Work Bill [HL]

Lord Warner Excerpts

3rd reading (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I, too, added my name to the noble Baroness’s amendment, and I echo what she said about the many organisations which have supported it. Many times during the Bill’s passage, mention has been made of the postcode lottery regarding the performance of local authorities around the country. If this assessment procedure is adopted, who will perform the quality assurance of the delivery of the assessment around the country? It cannot be the expert advisory board, which has a completely different purpose.

[Lord Warner (CB)]

My Lords, I, too, support the amendment, to which I added my name. I congratulate the noble Baroness, Lady Tyler, on her persistence on this, which has been well recognised by those who work in the sector.

As a former director of social services, I think it is essential that we recognise the need to assess many of these children. That is not to say that large numbers of them will necessarily progress to the most demanding parts of the system, but we know that if you do not assess and pick these problems up early, they go in only one direction: they get worse. We end up with children who have already had a pretty tough time having to fight their way into a CAMHS system which is itself struggling to cope with the demands made on it. We need to give children coming into care, those who are looked after, a good shot at getting access to the services that they need.

I think that the amendment has met the Government’s concerns about flexibility, which were legitimate. This House and the Government have always argued for parity of esteem between mental and physical health. This is another piece of the jigsaw to try to ensure that.

[Lord Watson of Invergowrie (Lab)]

My Lords, times without number during the Bill’s various stages, noble Lords from all quarters have highlighted the fact that children in care are four to five times more likely to have a mental health problem than children in the general population. We have advanced convincing arguments at each stage that there is a pressing need for all children entering care to be given the parity of esteem to which the noble Lord, Lord Warner, referred between physical and mental health assessments by appropriately qualified professionals.

We thought that the Minister was going down that track on Report when he tabled an amendment to Clause 1 to make it clear that all local authorities must promote both the physical and the mental health of children in care. That was certainly an important and welcome step, because the current system simply is not working. However, he was not willing to go what we regarded as the logical step beyond that.

It is fair to say that the Minister set out his reasons why he and his colleague, the Minister for Vulnerable Children, Mr Timpson, are not in favour of that. It has been argued that such a move would be too prescriptive in terms of when and how the assessment should be carried out and who might be qualified to do so. It has been argued that the assessment would be seen as potentially stigmatising, and it has also been said that it would cut across the work currently being undertaken by the Department for Education’s expert working group.

I do not think that any of those three holds water. I will not spend any time on the first two but in terms of the expert working group, it should be said that the Alliance for Children in Care and Care Leavers, which has assiduously provided noble Lords with briefings on various aspects of the Bill throughout its progress, is concerned at the Government’s failure to fully support this amendment. That organisation has 24 members, 21 of which are charities actively involved in the sector, but it also includes the Children’s Commissioner for England, the British Association of Social Workers and the National Association of Independent Reviewing Officers.

All those involved in the alliance deal on a day-to-day basis with the mental health and emotional well-being of children in care. The alliance is a body of some substance, and it speaks with some authority. The Department for Education appears to acknowledge that, because the alliance is represented on its expert working group. While that group has the respect of most within the sector—noble Lords were certainly impressed when we met its co-chair, Alison O’Sullivan in September—it will not report until this time next year. As I said on Report, it means that many children will continue to have their mental health issues undiagnosed in the intervening period. Of course, it is not just the end of next year; it is the fact that when the recommendations come out and the Minister decides which to accept and implement, a suitable piece of legislation has to be found. That may not become available until after the next general election—and by that I mean the one scheduled for 2020.

We feel that that is much too far off into the distance. I remain at a loss as to why Ministers are not able to overcome their doubts and simply get on with filling what is palpably a serious gap in the services offered to children entering care. I know that the Minister has been considering representations made to him by the noble Baroness, Lady Tyler. I am not alone in sharing her hope that he will have something positive to say in this area when he answers the debate, so that this matter, which has been discussed for too long, can at least move forward.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support the amendment and the arguments that have been put so far. I will not repeat what I said on Report but I did raise two questions that I did not feel were answered. I asked the Minister to spell out what further evidence, beyond the evidence we have from the experience of Scotland and Wales which we have heard a little about today, the Government need to convince them of the practical value of such a duty. They have been arguing that they do not see what the practical value is. I also asked what evidence they had that it would produce box-ticking rather than cultural change. What the Minister did say was quoted by the noble and learned Lord, Lord Woolf, earlier and I shall repeat it:

“We believe that the way to promote children’s rights is for strong practitioners locally to listen to children and to act in ways which best meet their needs. A duty alone will not do that, and risks practitioners focusing on the wording of the legislation rather than on practice”.—[Official Report, 8/11/16; col. 1089.]

Of course a duty alone will not do that, but surely practice underpinned by a duty is more likely to be good practice than practice that is not underpinned by a duty. Like the noble and learned Lord, Lord Woolf, I am surprised and disappointed that the Government are so resistant to what is, as he put it, such a minimal responsibility that will be placed on them. As we said, it sends out all the wrong messages as to this Government’s commitment to the UN convention.

It is good to hear that the Government have said they are still considering this issue. Given they know that there is so much support in this place it is a shame they have taken their time considering it, but can we have a commitment that when the Bill goes to the House of Commons, a clear statement will be made by the Minister there as to what will be done to reflect the very strong views expressed in this House and which I am pretty sure will be expressed in the other place also?

[Lord Warner]

My Lords, I, too, strongly support the amendment, but as a sceptical old Whitehall warrior, I will open up an issue that may suggest it is not the Minister and his colleagues in his department who might be the villains in this area, but other interests across Whitehall. As I understand it, if the Government accept the amendment they will then have to accept amendments relating to all the other services that are of concern to children. It would be very difficult for them to accept the amendment if they have reservations about the cumulative effect of implementing the convention in this way through statute for all the services that may affect children.

My suspicion about Whitehall, because I am of a suspicious nature given my background, is that there are problems around an impact assessment on what the implications of all this may be. Instinctively I feel that somewhere in this mix are our old friends at the Treasury and the control of public expenditure. They are often to be found when we have these long periods of inaction in any particular area. Some of the areas where children could be seriously affected—clean air, benefits and access to health services to name but a few—go much wider than the scope of the Bill.

I do not expect the Minister to divulge the workings of government, but can he throw any light on whether it is necessary to provide across Whitehall an impact assessment on what the costs of implementing this through statute would be? Do the processes by which these things have to be agreed across Whitehall have any chance of being agreed before the Bill completes its passage through Parliament?

[Lord Ramsbotham]

My Lords, I support everything that has been said and pick up on the words of my noble and learned friend Lord Woolf. It is very sad that the last two reports of the UN committee coming to this country have started with the words that they regret that so little has been done to implement the recommendations they made five years earlier. If, as my noble and learned friend has suggested, the convention or the causes should be made the centrepiece of cross-government action in this area, then there is a solid basis for all affected ministries in Whitehall to rally round and make certain that their contribution to what is required is not criticised the next time the committee visits.

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[Lord Warner]

My Lords, I have recovered from my astonishment at the Minister’s concession on Report. I am delighted to support this amendment, which is far more elegant than the one that I produced.

While am on my feet, I thank the Minister for all his efforts throughout the passage of the Bill and for the constructive way in which he has approached what has sometimes been a robust approach from some quarters of the House to some of his proposals. That has always been done in a thoughtful way, and I am grateful to him, to Edward Timpson and to his officials for the way that they have approached the Bill and the amendments we have proposed.

Before I sit down, in listening to the debates on the importance of personal relationships, it occurred to me that he might draw the importance of personal relationships to the attention of those Ministers who are interacting with their counterparts in Europe because there could be some useful lessons to be learnt from the debates in this particular House.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I do not think I will follow that comment.

If the noble Lord, Lord Warner, was astonished, I was certainly very pleased with the way in which the Minister acknowledged on Report that this is an important issue. I welcome the amendment. I take the opportunity of thanking the Minister, the honourable Edward Timpson in the other place and officials in both the Minister’s department and the Department of Health for the tremendous amount of work they have done in response to the issues raised. We are very satisfied with the outcome.

Children and Social Work Bill [HL]

Lord Warner Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 8th November 2016 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I support the noble Baroness’s amendment and what she has said. After witnessing this weekend, at a gathering of child and adolescent psychotherapists, the superb work that a therapist can do in supporting mothers and their infants to make good, strong relationships, I know that what she asks for is absolutely crucial. It was wonderful to see, for instance, the case of a mother who had grown up with a violent father, been taken into care and then gone on from care to become a teenage mother and have several of her children removed. Then she found the help of a child psychotherapist who helped her to understand her relationship with her child and to build a strong attachment with that child, so that eventually she was able to get back her other children. So I agree absolutely with what the noble Baroness is calling for. It is particularly important in the light of the recent view expressed by the President of the Family Division, highlighting the year-on-year increase in the number of children being taken into care, expressing the concern that that may well accelerate. It is much more difficult to give a high quality of care in the care system if the numbers of children arriving increase year on year.

I was grateful to the Minister for offering to meet me yesterday to discuss whether more can be done by central government to minimise the flow of children coming into care. I look forward to that meeting. I am particularly concerned about the new lower benefit cap and how it might impact on families. The noble Baroness, Lady Armstrong, highlighted the background of poverty for most families whose children are taken into care. I am concerned that this may increase that poverty and force more of these families into homelessness. It raises the risk of more children being taken into care—but we will debate that this evening in the dinner break.

[Lord Warner (CB)]

My Lords, I support the amendment moved by the noble Baroness, Lady Armstrong. I remind the Minister that there have been many initiatives by far-sighted people, including judges such as Nicholas Crichton, who have looked at the issue of repeat pregnancies when a child is taken away from a birth mother.

There is a growing body of evidence, but what have the Government done to look at it in terms of cost-effectiveness? One’s instincts are that this is a good investment. Certainly, sober judges have thought that this was a good investment and have raised the money to put some of these projects in place. Is it not about time the Government looked at the evidence on whether it is cost-effective to go to a scale on this kind of initiative?

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[Lord Watson of Invergowrie]

My Lords, since the Bill had its Second Reading, there has been a wide and varied selection of briefing meetings provided by Ministers and civil servants. In some cases, outside experts were also present, and I commend the Minister for facilitating these sessions, which in many ways have proved helpful in enabling noble Lords to better understand the Bill and to articulate our concerns in greater detail than is possible in this Chamber, or indeed in Committee.

Much progress has been made, and this has resulted in a number of concessions by the Government, particularly in respect of Part 2, on social workers. However, I am confused, having heard the Minister’s opening remarks. He said, and I am pretty sure I am quoting quite accurately, that Clause 29 was not about local authorities opting out or removing services from them. However, Clause 29(2) says:

“The Secretary of State may by regulations … exempt a local authority … from a requirement imposed by children’s social care legislation”.

Surely the Minister’s remarks and the Bill are at odds. Perhaps he can explain that when he replies.

That said, and for all the discussions we have had, we still do not believe, as the noble Lord, Lord Ramsbotham, said very powerfully, that it has been possible for a convincing case to be made by Ministers as to why the exemptions outlined in Clause 29 are necessary. For the avoidance of doubt, it should be made clear that innovation in the delivery of local authority children’s services is to be welcomed. Indeed, throughout this process, I cannot recall anybody—whether noble Lords or people from the various organisations who have assiduously and very helpfully provided us with briefings—argue against innovation per se, or as the Bill describes it, the power to test new ways of working.

The terminology is not that important. What matters is that the children’s services are delivered comprehensively, effectively and safely, and that these services are available across the country. The standard may vary, though that can and must be addressed when it arises. The nature of the services provided should be, as near as possible, uniform across the country. This is about defending children’s social care rights. The alternative is a postcode lottery, as was referred to by the noble Lord, Lord Ramsbotham.

I am sure the Minister would not want that, yet I cannot see how such an outcome is anything other than inevitable if a local authority is allowed to withdraw from providing a service while the neighbouring authority continues to provide it. Exemptions from service provision raise the prospect of looked-after siblings living in different areas having different legal safeguards, and children from different local authorities living in the same children’s home having different forms of legal protection. How can that be regarded as a step forward?

The Government set out their stall in their strategy Putting Children First, which was published in July. It referred to,

“a controlled environment in which we could enable local authorities to test deregulatory approaches that are not currently possible, before taking a decision to make substantial changes to existing legislation that would apply across the board”.

However, the document itself did not identify the “deregulatory approaches” that cannot be tested presently. In the document, the Chief Social Worker for Children and Families asserts:

“We must be enabled to use our professional judgment in flexible and creative ways, rather than having to follow a procedural path or series of legal rules”.

For the chief social worker to seek to avoid having to follow “legal rules” is worrying at the very least and invites the question as to whose side she is on; some have recently questioned whether the answer is vulnerable children. If local authorities are unable to provide a full and effective service in social care, then the main reason is usually a lack of resources, especially in terms of staffing. I think it is pertinent to ask: why is the chief social worker not using her position of influence to campaign for more resources to enable her fellow social workers to do their job to the best of their ability, rather than undermining and demoralising the profession as many social workers feel that she is doing?

The bottom line is that Clause 29 is not necessary. We have been unable to find any evidence that local authorities have their hands tied by existing legislation to the extent that they cannot test “new ways of working”. I am not going to repeat the list of a dozen councils that I gave to the Minister in Committee, and there are more. The message is clear: there are no impediments to such change; at least, it appears from the evidence that none cannot be overcome. Clauses 29 to 33 would undermine a rights-based approach to children’s social care. In doing so they risk removing vital protections from vulnerable young people who rely on the law to keep them safe and guarantee the provision of essential services. I accept that is not what the Minister intends. Of course it is not. However, many people involved in the sector are absolutely clear that that would be the result.

The Government have come forward with a number of what they regard as safeguards. The powers cannot be used to make a profit. I certainly echo the noble Lord, Lord Ramsbotham, in welcoming government Amendment 54. The affirmative resolution procedure will be required to make exemptions from or modifications to legislation. The Secretary of State must consult an expert panel to advise her before she makes any recommendations. However, I contend that these are all open to question. We believe that the Government’s ultimate intention is to open up the field of social work services completely, either to the private sector or to the third sector, with local authorities having their role reduced to a bare minimum. Initially, the most attractive services would be outsourced, but in time the only services not outsourced will be the less attractive and the more problematic ones. At that point, the only means of taking them out of local authority control will be by allowing them to be run for profit and, at that stage if not before, this section of the Bill would be amended, just as so many pieces of children’s protection legislation are amended in this Bill.

As for affirmative resolutions, it is extremely rare for statutory instruments presented to Parliament to be rejected, whether they follow the negative or the affirmative resolution procedure. Indeed, the Hansard Society recently reported that over the past 50 years, a mere 0.01% of such instruments have not been passed. That is one in 10,000. Given the “take it or leave it” proposition inherent in them, that is perhaps not too surprising, but it does take most of the wind out of the Minister’s sails as regards his Amendments 55 and 56.

It is perhaps instructive that the panel is described as an expert panel, rather than an independent panel as we seek in Amendment 60. The reason is clear, though, because in no way could the people mentioned in Amendment 61 be regarded as independent. Two of them are there ex officio, having been appointed to those offices by the Secretary of State. The two “other persons” to join the panel would be chosen by—that is right—the Secretary of State. Given that the Government have made their long-term plan clear in Putting Children First, it would be a brave panel member who argued against a local authority request being approved. The suspicion is that those panel members would become the equivalent of regional schools commissioners, charged with the de facto responsibility of removing services from local authorities as widely as possible.

There are rigorous safeguards that the Minister could consider, such as limiting the powers to local authorities rated good or outstanding; requiring local authorities seeking exemption to hold full and open local consultations, based on a properly considered assessment of the impact of the exemption on the children and families concerned; or perhaps most importantly, requiring that exemptions are not used to reduce overall investment in children’s social care.

Clause 32 also remains a worry, because local authorities in intervention is the most likely situation in which those powers will be used and because the Bill gives responsibility for that to the Secretary of State, without the consultation of local partners that exists for Clause 29. That is why we have submitted Amendment 65, suggesting that the Secretary of State must consider the advice of the Children’s Improvement Board.

The Minister must be aware of the opposition to Clause 29. A petition calling for the exemption powers to be scrapped has received over 100,000 signatures. More than 40 expert organisations have come together to oppose the inclusion of these clauses in the Bill. Last week UNISON published a report which showed that, in a survey of almost 3,000 of its social workers, just one in 10 supported the Government’s proposals.

This clause, and the ones which relate to it, have long been the main concern of noble Lords and a wide range of opinion beyond. I accept that the Minister has tried to mitigate its effects and the fears that it has engendered, but I am afraid he has not succeeded. For that reason, should the noble Lord, Lord Ramsbotham, decide to press Amendment 57, he will have the support of these Benches.

[Lord Warner]

My Lords, as someone who strongly supports reform and innovation across the public services, I rise, perhaps a little surprisingly, to support Amendments 57, 58, 64, 66 and 68, tabled by the noble Lord, Lord Ramsbotham, and to which I have added my name. I will not rehearse again the arguments that he and the noble Lord, Lord Watson, have made, and with which I totally agree. I welcome, and accept, that the Government have crafted some safeguards to meet the extensive concerns expressed across the Benches of this House in Committee and by many concerned interests outside Parliament, most notably the social work profession itself and the major children’s charities.

The Government’s amendments include one of my proposals, for which I am grateful—namely the establishment of an independent panel to consider particular proposals. Ultimately, however, after reflecting further on this issue following a pretty lengthy meeting with Edward Timpson, many of his officials and people from local government, I think that these clauses remain fundamentally flawed, even with the proposed safeguards, for three main reasons.

First, the examples that the Government have cited in support of the clauses do not justify the kind of draconian powers that the Secretary of State has sought. All the examples I have heard about are relatively minor changes which may or may not improve effectiveness and efficiency. The Government have simply not shown why such wide powers are needed, or the scale of innovation that cannot be attempted because of primary legislation. We simply do not have the evidence base to show that there are a lot of hungry people out there wanting to innovate who are frustrated by primary legislation. In any case, if the Government thought that the changes they have cited were necessary and needed primary legislation, they could, and should, have used this Bill to make them, and subjected their ideas to parliamentary scrutiny. There was nothing to stop them including those proposals in the Bill and explaining why they needed to introduce changes and why children’s services would be improved. However, the Government have chosen not to do so. Instead, they have chosen an extremely large sledgehammer to crack quite small nuts, which has only caused many people to wonder what the Government are really up to. The Government’s failure to consult properly on this Bill in advance has only fuelled that suspicion.

Secondly, the Government have singularly failed to convince all the major children’s charities, Liberty and the majority of social workers that what they are proposing in Clauses 29 to 33, even with the proposed safeguards, will benefit outcomes for vulnerable children. The charities, along with the professional interests, simply do not consider that the Government have made the case for Parliament to open the door to remove long-standing protective rights granted by Parliament to safeguard highly vulnerable children. They are right to warn us to draw back from granting these wide powers to the Government, even with the proposed safeguards, without much more convincing evidence. As the charities said in the briefing to us, the Government should go back to the drawing board on innovation and conduct a proper review of what is needed in consultation with the various interests. It is striking that all the briefing we have received shows that these bodies have an appetite for innovation. They are not being Luddites about innovation and reform. They are saying that the process which the Government have adopted is totally inappropriate if we want to safeguard rights-based children’s protection services.

Finally, the noble Lord, Lord Ramsbotham, referred to an argument which is currently being given a good airing over the triggering of Article 50. The argument is that when Parliament puts legislation in place, Parliament should amend it and not allow a Secretary of State to take wide powers to amend what he thinks fit. That is a particularly important consideration when the rights of vulnerable children are involved. For those reasons, if the noble Lord, Lord Ramsbotham, chooses to test the opinion of the House, I will vote with him.

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[Lord Nash]

My Lords, I thank all noble Lords who have contributed to this debate. I found it very depressing. Frankly, many noble Lords seemed to be depressingly suspicious of our motives. This is all about improving care for children at the front line. Nobody who has worked closely with my ministerial colleague Mr Timpson could possibly doubt that. He literally has care for children in his DNA, his late mother having fostered more than 80 children and adopted several, and his having worked as a professional in this field for many years. I am extremely grateful to my noble friends Lady Eatwell and Lord True, who are hugely knowledgeable on the inner workings of local authorities in this area, and to my noble friends Lord Farmer and Lord O’Shaughnessy and my noble and learned friend Lord Mackay, for their support.

The noble Lords, Lord Watson and Lord Low, asked for examples of why this power is necessary. The noble Baroness, Lady Howarth, mentioned three examples. We have discussed this at length before. Local authorities, including the very best, tell us that this power will provide them with opportunities to innovate which are simply not available under current legislation. Of course, some local authorities provide very good services under the current legislative framework, but children deserve the very best services, not the best within the current constraints of the good but not perfect legislative framework.

During the course of this debate, I have reflected on a number of points that have been made. The noble Baroness, Lady Howarth, talked about a lot of misinformation in the system and a lot of suspicion, which may affect some noble Lords’ suspicion. It is our job as lawmakers to see through suspicion and see the arguments for what they truly are, and it is the Government’s job to clarify the position with stakeholders. I commit to doing everything we can to explain more fully what this is about, because it is clear that we need to do more in that regard.

I have also reflected on something that my noble friend Lady Eaton and the noble Lord, Lord Low, said. I have huge respect for the noble Lord and I was struck by how suspicious he was of our motives in this regard. I have thought about this in relation to Clause 32. Without Clause 32, it would be impossible to say that this is about dismantling local authorities because these provisions can be initiated only by local authorities. Clause 32 was intended to be a technical clause to clarify that whoever is discharging the local authority’s functions, whether it is a trust or the Secretary of State, has the ability to use the power to test different ways of working. As I have said previously, we anticipate working with our strongest local authorities in the first instance, rather than intervention authorities, and there was never any immediate policy intent for the power to be used in this way; nor was the intention to cut local partners out of decision-making. However, I understand that this point may have caused unnecessary concern to noble Lords. It is critical that local government should feel it owns these clauses. If the provisions in Clause 32 are a block to that, I am very happy to reconsider the point completely. I think that would remove the fear expressed by the noble Lord, Lord Low: there could be no question of a dark agenda on the part of the Government to dismantle local authorities, because only they would have the power to initiate these clauses. I hope this will go some considerable way towards reassuring noble Lords who have concerns on this point.

I will address some other points, particularly the amendments on the process of scrutinising applications. I start with the amendment in the names of the noble Lords, Lord Warner and Lord Watson. As I have said, we have listened to noble Lords on this point and tabled a government amendment to introduce an expert advisory panel to scrutinise applications to use the power, and publish its advice. I believe we have gone a long way towards satisfying noble Lords’ concerns in this area.

Amendments 62 and 65, tabled by the noble Lords, Lord Watson and Lord Hunt, are on the Children’s Improvement Board. I entirely understand the intent behind these amendments, and the noble Lords are right that local government has a very important part to play in scrutinising applications. We propose that this be done through the Children’s Improvement Board feeding in views to a local government representative on the expert advisory panel, which I have already referred to. My officials will work with the LGA and others to work out the details of this process, but I think that would be preferable to naming an informal grouping in the Bill. The grouping could change its constitution or its name at any stage and therefore render itself unable to be consulted. I do not think that would be the right way forward.

Turning to the amendments that address the principle of these clauses, the noble Lord, Lord Ramsbotham, referred to organisations which object to the power. However, it is overwhelmingly the organisations on the front line, and those that represent them, which support these clauses and agree with the Government that overregulation can get in the way of innovation. The LGA has said that it strongly supports the principle of allowing councils to shape provision around the needs of children and young people, rather than the constraints of inflexible regulation. Similarly, the Society of Local Authority Chief Executives has said that the tight regulation and inspection regimes applied to children’s social care provide little opportunity for innovation, and that the proposed power to innovate will enable local councils to try different approaches with appropriate safeguards.

Our partners in practice, 11 of the best and most innovative local authorities from across the country, support this. For instance, Leeds City Council has said that it wants to work in partnership with government to remove barriers that get in the way of best practice, and become an exemplar of a new and more sustainable safeguarding system in which children do better because families are supported to do more and the state has to intervene less. Professor Eileen Munro, whose ground-breaking review into child protection is at heart of our case for the power, supports these clauses. She has said of the power that it is,

“a critical part of the journey”,

set out in her independent review and that,

“testing innovation in a controlled way to establish the consequences of the change, before any national roll out, is a sensible and proportionate way forward”.

Anthony Douglas, chief executive of Cafcass, has described the power to innovate as a,

“crucial requirement if the mainstream social work and social care services of the future are to successfully manage demand, improve quality and provide value for money”’.

The National IRO Managers Partnership sees the opportunity given by the clauses to test new approaches, and has said that the clauses are,

“an opportunity to review practice and develop more innovative approaches and models of support across the whole system of children’s services”.

Finally, Chris Wright, chief executive of Catch22, a charity that is at the forefront of delivering innovative services, makes the case for the power well. He says:

“It will give power back to practitioners and professionals at the local level, supporting them to design programmes that work for the specific children in their care”.

This illustrates that a very significant amount of support exists for the Government’s case that regulation can get in the way of innovation, and that the approach we are taking of introducing a grass-roots power that allows local authorities to come forward with ideas, with careful safeguards, is the right one.

I understand the concerns expressed by noble Lords about delegated powers of this type and about whether the power is proportionate. I stress that this is absolutely not about Government bypassing Parliament on matters of legislation. It is about local authorities, Parliament and Ministers working in partnership to test new approaches and build the evidence for a better legislative framework for all children. Every use of the power will be rigorously scrutinised ahead of being debated, to ensure that it is truly in the best interests of children. Parliament will have the ultimate say on every use of the power.

The noble Lord, Lord Warner, made the point about using a sledgehammer to crack a nut. I suggest that in voting out this clause, noble Lords would be using a sledgehammer to deny the system the opportunity to test a very limited way of working with the aim of improving the lives of young people. The noble Lord asked for evidence, but it is not until we test ideas in practice—in a very limited way—that we can get that evidence, rather than just talking about a lot of theoretical ideas.

[Lord Warner]

I was making a slightly different point. Where is this groundswell of concern which accumulated in the DfE before it produced the legislation to suggest that this is necessary?

[Lord Nash]

I have already quoted a number of practitioners who have stated the need for it. As I have said, if we remove Clause 32—which I am quite prepared to look at doing—we will deal with many of the shadows that some noble Lords have raised.

The Government have listened and made substantial steps to put safeguards in place around the use of the power. The Children’s Minister and I remain ready at any time to discuss these clauses further. Professor Eileen Munro talked about doing the right thing, rather than doing things right, and that is what this power is all about. If these clauses are removed, noble Lords would be denying local authorities that can see a better way of working for the benefit of the children in their care the opportunity to test the whole system and learn how we can do things better, giving those children the opportunity of a better life.

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[Lord Warner]

My Lords, I echo the support given by other parts of the House to the Minister. I am grateful for the fact that Edward Timpson was very much in listening mode. He was extremely helpful in taking forward and dealing with the concerns many of us had with the original version of Part 2.

I echo the point made by the noble Lord, Lord Hunt, regarding the PSA’s concerns about how widely the powers have been drawn. It has been given powers to go to the High Court, which is not the arrangement it has with all the other health and care regulators. It is pretty nervous about the cost implications. Also, on the point the noble Lord made about the transition arrangements, a very large number of cases need to be dealt with, and there needs to be an orderly transfer.

My name has been added to Amendment 116, the intention of which is to get the Minister to explain why the affirmative resolution procedure applies to most of this part of the Bill, but the negative procedure applies to changing the name of the regulator. Is there some cunning plot in the DfE regarding another lot of names they have in mind?

[Lord Nash]

My Lords, I am grateful to the noble Lords, Lord Hunt and Lord Warner, for their comments. I will write to the noble Lord, Lord Hunt, about the transition arrangements. His advice is helpful. I can reassure noble Lords that we have no intention of expanding the PSA’s role in relation to its power to appeal cases to the High Court, but I will cover that in a letter to the noble Lord.

On funding Social Work England, we will ensure that any set-up costs will not fall on social workers themselves, and we are committed to supporting its running costs. Social workers already pay one of the lowest fees of any profession and we are determined to keep these as low as possible. It is of course normal practice for professional regulation fees to be subject to review from time to time. However, the amendments will ensure that Social Work England will also have to seek the approval of the Secretary of State before determining the level of fees. This will allow Ministers to exercise appropriate control over any future plans by the regulator to increase fees. I hope that reassures the noble Lord.

On the issue raised by the noble Lord, Lord Warner, we have reflected the principle he wanted in Amendment 115, which inserts a new clause to make specific provision for parliamentary procedures relating to regulations made under Part 2. This sets out that all regulations in the main body of Part 2 will be subject to the affirmative procedure. There is an exception for renaming the regulator. Frankly, that is because we believe a name change represents a relatively minor change and the negative procedure allows for sufficient scrutiny. A name change would, of course, not involve any change to the fundamental objectives and functions of the regulator or any of the other provisions governing the regulator’s operations. I hope the noble Lord is reassured to hear that, and that noble Lords are happy with the amendments.

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Moved by

[Lord Warner]

117: After Clause 50, insert the following new Clause—
“Time limit and review
(1) This Chapter (sections (Social Work England) to 52), Schedule (Social Work England) and any regulations made under these provisions, shall cease to have effect at the end of the period of five years starting with the day on which they come into force, unless the conditions in subsections (2) and (3) have been met.(2) The conditions in this subsection are that—(a) there has been an independent review of the effectiveness of these provisions, which has included consultation with representatives of the social work profession and other interested parties; (b) a report of the review has been laid before Parliament, together with a response to the review by the Secretary of State.(3) The condition in this subsection is that the Secretary of State has, by regulations, made such changes to the provisions listed in subsection (1) as he or she considers necessary, having full regard to the findings of the review.(4) Regulations under subsection (3) must be made by statutory instrument, and may not be made unless a draft of the statutory instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Warner]

My Lords, I will try not to detain the House for much longer on this Bill, but Amendment 117 in my name and those of the noble Lords, Lord Hunt and Lord Ramsbotham, and the noble Baroness, Lady Walmsley, does no damage whatever to the Government’s wish to progress the establishment of a new social work regulator in the way now proposed with the new government amendments. Instead, it gives the Government the chance to review progress after a decent interval and in the light of experience and, as I will come to briefly in a moment, likely changes in the regulation of other health and care regulators.

In essence, the amendment would impose a pause after five years of all the changes in the amended Part 2 of the Bill and the associated schedule and regulations made under these provisions, unless the Government have met three relatively modest conditions. The first would be an independent review of the effectiveness of the changes that includes consultation with the social work profession and relevant interests. The second would be to lay the review’s report before Parliament, together with the Secretary of State’s response. The third would allow the Secretary of State to make such changes to Part 2 as she thinks appropriate, having full regard to the findings of the review.

As I have said already, I welcome the way the Government have responded to the many concerns about Part 2. I regret that the Government were unwilling to go a little further and keep the governance of the new regulator under the Privy Council Office, as is the case with the current social work regulator and all the health and care regulators. However, that disappointment is not the main reason for the amendment, which the clerks helpfully framed.

Behind the amendment are two main concerns. First, the history of social work regulation has not been a happy one, as everyone knows only too well. The introduction of a new regulator has itself not had a very orderly birth. A review after a few years would seem a sensible precaution, given the history of this area. Secondly and perhaps more importantly is my concern, shared by the Professional Standards Authority, that a high proportion of social workers to be the concern of the new regulator do not work in children’s social care, whose problems have driven the reform in the Bill. These other social workers work in adult social care and mental health, where their main working relationships are usually with adults and the NHS and nothing whatever to do with the DfE.

There is a totally different change agenda going on for these adult social work staff that is bound up with the integration of the NHS and adult social care under the Department of Health’s oversight, plus integrating better mental and physical healthcare. These are the agendas that one half of the social care workforce are engaged with. Until the Bill came along, the regulation of all social workers had been under the same governance and oversight as all the other health and care professions. All these professions were on the cusp—and still are—of further regulatory reform following a Law Commission report. That programme of reform is still on track for public consultation and new legislation, quite possibly in this Parliament. It is quite possible that these changes would have implications for the new social work regulator, Social Work England. In its evidence and briefing for this debate, the PSA has expressed its concerns about whether there will be proper alignment between further regulatory reform of all these other health and care professions, and the work done by the new Social Work England regulator.

In these circumstances, it would seem wise to prepare for a pause and review within about five years to see how things are going with the new social work regulator and with this wider regulatory reform agenda for the health and care professions, with whom social workers’ future is, in many regards, deeply embedded.

That is what my amendment would do. It would not stop the Education Secretary pressing on with the changes in the Bill, but it would ensure that, across Whitehall, social workers were not lost sight of in the wider health and care professions regulatory reform agenda.

I hope that the Minister will see this as a constructive amendment and that he and his colleagues will consider it sympathetically and perhaps discuss it further with me and others who are interested in this area—and possibly the PSA as well—before Third Reading. I beg to move.

[Lord Hunt of Kings Heath]

I support the amendment in the name of the noble Lord, Lord Warner, and hope that the noble Lord, Lord Nash, will be prepared to meet him in the next week to discuss it. We wish the new social work regulator all the best in its difficult task. I hope that it will be able to learn the lessons of the failures of the past and give the profession the kind of stability and leadership in regulation that it requires.

We also know that the Department of Health is gearing up to a review of and potential legislation on health regulation, which is bound to have an impact on adult social workers—the noble Lord, Lord Warner, set that out very clearly. We want the integration of professional workers to be encouraged as far as possible across health and social care and for there to be consistency in regulation more generally. Given that this major work is to be undertaken over the next few months and years, the amendment provides a backstop which essentially says that there should be a time limit on the arrangements being taken forward, unless the condition, which is an independent review to be considered by the Secretary of State, gave assurance that the Government collectively were making sure that the integration and consistency that we want would be implemented in full.

The noble Lord, Lord Nash, and his ministerial colleagues have been exceptionally kind in listening to noble Lords on this Bill. I hope that he might be prepared to do the same on this amendment.

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[Lord Nash]

My Lords, I am grateful for noble Lords tabling Amendment 117 and welcome the intention behind it. We are committed to ensuring that these provisions and the work of Social Work England are independently reviewed. It is crucial that we ensure that the provisions bring about the reforms that are needed and that they remain fit for purpose.

I am sure that noble Lords agree that we must avoid any potential for the social work profession not to be regulated, but we should not risk the regulatory oversight of the profession being in any way uncertain. I can reassure noble Lords that this Government are making substantial investment in social work reform and will not leave the success of the body to chance. I can commit to go further than promising to reflect on the matter and meet the noble Lords who have raised this issue.

To ensure that Social Work England remains fit for purpose and carries out its functions effectively—and at the risk of being accused of trying to end this stage of consideration of the Bill on a high—I want to signal now my intention to table an amendment at Third Reading that commits on the face of the Bill to the carrying out of a formal independent review of the regulator five years from the point that Social Work England becomes fully operational. We will require the review to be laid before Parliament.

I anticipate that the review will consider the operation of the regulator with particular regard to its governance and oversight arrangements. I will also require those undertaking the review to consult representatives of the social work profession and other interested parties. I also reassure noble Lords that, following the review and discussions with Members of Parliament and Peers, the Secretary of State for Education and the Secretary of State for Health will be required to publish a response setting out the actions that will be taken.

I wholly agree with noble Lords that appropriate measures need to be in place to ensure that these provisions are independently reviewed. As I set out earlier, the Professional Standards Authority will undertake an independent review annually on how Social Work England discharges its functions. The amendment that I will propose will strengthen these measures further.

I hope that the commitments that I have set out tonight—that an annual report will be published by the Professional Standards Authority, and the tabling of an amendment that would see a full independent review after the first five years of Social Work England’s operation published and accompanied by a statement from both Secretaries of State setting out clearly their response—will reassure noble Lords of the Government’s commitment to getting this right not just now, but in the future. I am happy to meet noble Lords to discuss the details further, but in view of these commitments I hope that the noble Lord will agree to withdraw the amendment.

[Lord Warner]

I am astonished. The Minister seems to have got over his earlier depression and I am very grateful to him for his response. On that basis, I beg leave to withdraw the amendment.

Amendment 117 withdrawn.

Children and Social Work Bill [HL]

Lord Warner Excerpts

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

[Lord Watson of Invergowrie (Lab)]

My Lords, I support the amendments in this group, particularly Amendment 4. I am pleased to support the remarks of the noble Lord, Lord Ramsbotham, who stressed the need for screening for the various neurodevelopmental disorders and neurodisability needs listed in the amendment. Many of those arguments were made in Committee with particular reference to communication disorders, and I hope the Minister will find them more persuasive on this occasion.

There are many problems related to getting children an assessment and/or a diagnosis. The social worker needs to be aware of neurodisabilities and the support and training to enable them to develop this understanding. The lack of time to build meaningful relationships with a child and really get to know them is also of concern. Again, I hope the Minister will have something to positive to say on that.

On Amendment 1, the Minister acknowledged the need for parity of esteem between physical and mental health, and of course that is welcome. That being the case, however, there is surely no reason why he should not accept that his amendment is logically extended by the wording of Amendment 8 in the name of the noble Baroness, Lady Tyler. Looked-after children are among the most vulnerable in our society, often entering care with a history of abuse and neglect. But it is the sad case that once they are in the care system—a system intended to protect them—many continue to be at risk of further abuse. The Children’s Commissioner estimated that between 20% and 35% of children who had been sexually exploited were in care at the time of that exploitation. I am afraid that, all too obviously, there have been several such cases in our newspapers recently.

Knowing and understanding what types of support would benefit children entering care should be a simple step. It should be a basic element of that support that they receive a mental health assessment alongside the physical health assessment that already happens. Not only would that identify children with diagnosable conditions that require clinical interventions, it would allow foster carers, social workers, teachers and other responsible professionals to develop an understanding of how they could foster therapeutic relationships with those children in their care. I echo the recent remarks by the noble Earl, Lord Listowel: in many cases children require mental health assessments prior to entering the formal education system because damage can often be done at that stage that it is very difficult to deal with later. Children cared for in institutional settings have often experienced a high number of foster placements which have subsequently broken down, which can often be a by-product of poor emotional well-being.

It is estimated that almost three-quarters of children in residential care have a clinically diagnosable mental health condition. If a concerted effort had been made to address the mental health needs of those children when they entered care, it is at least possible that they may never have needed to be placed in residential care, which is, after all, a much more expensive option than foster care. That is why a whole raft of professionals working with the mental health needs of looked-after children believe that this help should be offered as early as possible. There is no rational reason for delaying the introduction of these simple measures, which could prevent further trauma being inflicted on these children.

As many noble Lords present will know, we have raised this issue time and again. I was among several noble Lords making the case at each stage in the passage of the Children and Families Act 2014. It was repeated at Second Reading and in Committee on this Bill. I raised it again at the briefing session on the Bill for noble Lords which the Public Health Minister hosted in September. All this was to no avail. Nor has this House been the only source of such pleading. As the noble Baroness, Lady Tyler, said, in April, the Commons Education Select Committee published its report entitled Mental Health and Well-being of Looked-after Children. One of its recommendations was that,

“all looked-after children should have a full mental health assessment by a qualified mental health professional. Where required this should be followed by regular assessment of mental health and well-being as part of existing looked-after children reviews”.

The Government considered the Committee’s report, rejected most of it, it must be said, and their response on that point was:

“We do not accept the recommendation as it stands”.

The response went on to refer to the expert working group for looked-after children that the Government established in May as a possible means of filling this long-established gap in provision for looked-after children. Perhaps there is reason to be optimistic as to that group’s recommendations, since it will have as its co-chairs Alison O’Sullivan, the former president of the Association of Directors of Children’s Services, and Professor Peter Fonagy, a psychologist and medical researcher. By what I am sure is complete coincidence, both gave evidence to the Education Select Committee’s inquiry and both, I understand, indicated their support for children having a full mental health assessment when they enter care. The expert working group also included four people who gave evidence to the Select Committee, plus the person who acted as its adviser, so the crossover is considerable, which I very much hope is all to the good.

It would lack consistency for the Minister today to submit Amendment 1 but then dig in his heels and steadfastly refuse to go further with regard to a full mental health assessment. Simply pointing to the expert group is not satisfactory, because it is not due to report for at least 18 months, which means that the Government will effectively stonewall again when the Bill reaches another place. Even if the expert group recommends a mental health assessment for each child entering care, the Government would then need to accept the recommendation—which, on past practice, requires a leap of faith—and then we would need to await the next suitable Bill as a vehicle to introduce it. So if anything does change, it will be quite some way down the line.

The Minister, his advisers and officials at the DfE should ask themselves how many more children will have their mental health issues undiagnosed because of government foot-dragging on an issue that the professionals are quite clear on. Over the years ahead it will be many thousands and that is not a thought of which anyone associated with the Bill on the government side should be proud.

[Lord Warner (CB)]

My Lords, I support all the amendments in this group, particularly Amendment 8, spoken to so ably by the noble Baroness, Lady Tyler. I shall turn to Amendments 4 and 5, to which I have added my name, in a moment. It is a strange irony that she could find an assessment tool in the youth justice system for these conditions; looked-after children seem to have to work their way into the criminal justice system before they can avail themselves of this tool. If I may say so to the Minister, it might be worth considering getting in there a little earlier with looked-after children and accepting the noble Baroness’s amendment.

I strongly support Amendments 4 and 5 in the name of the noble Lord, Lord Ramsbotham. I declare my interest as the grandparent of a child on the autistic spectrum and a staunch supporter of the National Autistic Society. From all my involvement with looked-after children over the years, many of whom then appeared in the youth justice system, where I saw them again, far too many of these children end up in that system and far too many of them have neurodisabilities or neurodevelopmental disorders. Their problem has often been overlooked for a very long time. These disabilities can be at the heart of their problems in terms of social non-compliance in the school and in the wider community. This leads to their becoming children at risk and in need, as well as often ending up in the youth justice system. The way that they process information and instructions—or, more accurately, fail to do so—is at the heart of many of their problems. Knowing about this is a first step to helping them to manage their condition.

If the state is to take the drastic step of assuming responsibility for these children, the least it can do is to make very sure whether these children have disorders and disabilities about which, on their own, they can do very little and with whose management they need help. The Government should take this issue seriously and include in the Bill a provision of the kind set out in Amendments 4 and 5.

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Let there be no doubt of our commitment to improving outcomes for looked-after children and care leavers, but I encourage noble Lords to be wary of adding to the already complex landscape of legislation in this field at this time, ahead of the expert group—

[Lord Warner]

I am sorry to interrupt the Minister’s flow, but I am puzzling over what he has just said about the amendments from the noble Lord, Lord Ramsbotham, and whether the thrust of those is going to be included in statutory guidance, particularly covering all the conditions set out in Amendment 5. He seemed to be quite encouraging about this, but perhaps he could clarify whether that will be covered in statutory guidance.

[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.

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In any event, I think that this response recognises that the practice is to have a particular carer allocated to the child. If that happens and is consistently carried out, the link is likely to arise that may be of extreme value in the emotional well-being and stability of the child, as it is very difficult if these people change completely every so often without any continuity. That is what I want to achieve and I am glad the noble Lord, Lord Warner, has found it possible to put his name to this amendment.

[Lord Warner]

My Lords, I shall speak to Amendments 2 and 9, both of which I have added my name to. Based on my own experience, I believe that the amendment of the noble Earl, Lord Listowel, is extremely important. Too often, in the understandable wish to make children safe, we overlook the importance of previous and sometimes current links to children’s family and a wider group of people who are important adults in their life. That is even where parts of that family have been highly dysfunctional and may not have always treated them well. There is often still a link with that family which is very important to the child.

These children often wish that their immediate family had treated them better, but they do not necessarily wish to sever all their links to family and the wider world outside of what they experience in care. Very often, there are people in their family and among a wider carer group with whom they have made quite a strong bond and relationship and have a desire to maintain that contact. I suggest to your Lordships that it is critical to a child’s own sense of self-worth that they are not given the impression that they do not matter to this wider family and group of people who have been important in their life. I think it is critical that the Government take seriously the spirit of the amendment proposed by the noble Earl, Lord Listowel, and are willing to incorporate that spirit in some form in appropriate words on the face of the Bill.

I have added my name to Amendment 9, proposed by the noble and learned Lord, Lord Mackay, because I strongly support it. I think he has worked extremely hard trying to persuade the department that there is merit in his approach. I think there is very strong merit. Children in residential care are often the most needy and vulnerable. All too often they have a history of failed placements and a strong sense of being let down by the adult world. They are often used to adults walking away from them or dipping in and out of their lives, rather than building strong relationships with them that last over time.

When they come into residential care and find a key worker or a personal adviser to whom they can relate, it is often very important for their sense of self-worth that the system tries to foster that relationship and assists its continuance, not only while they are in care but when the child leaves residential care and moves to independent living, which is a very difficult thing to carry out. Many of us find it difficult to encourage our own children to move to independent living well into their 20s, so imagine what it is like for a young person leaving care. Maintaining that relationship with a key worker, personal adviser or adult who is connected to the child when they are in care may, in some cases, be the ingredient that determines success or failure as they move into independent living.

This is a massive issue for many of these young people, and I think that the Government would do well to listen to both the noble and learned Lord, Lord Mackay, and the noble Earl, Lord Listowel, and to take seriously their amendments.

[Baroness Lister of Burtersett (Lab)]

My Lords, I want to make one simple point in support of Amendment 2, although it probably relates to Amendment 9 as well. In discussing the previous group of amendments, we talked about the mental and emotional health of children, and the Government’s amendment was about the promotion of mental as well as physical health. I cannot think of anything that could do more to undermine the mental health of children than to be torn away from relationships that are really important to them. Therefore, in the interests of making a reality of government Amendment 1, I hope that the Minister will feel able to accept Amendment 2 in the name of the noble Earl, Lord Listowel.

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Moved by

[Lord Warner]

6: Clause 1, page 2, line 27, leave out “A local authority in England must” and insert “In discharging its duties under subsection (1), a local authority must—
(a) ensure that all the local authority’s relevant partners are aware of their duty under sections 10 (co-operation to improve well-being) and 11 (arrangements to safeguard and promote welfare) of the Children Act 2004 to co-operate with local authorities to improve the well-being and safeguard and promote the welfare of children who fall under subsection (2); and(b) ”

[Lord Warner]

My Lords, in moving this amendment I shall also speak supportively of Amendment 7, to which I added my name after I had tabled Amendment 6. Both amendments seek to achieve similar ends but in slightly different ways. That end is to include in Clause 1 of the Bill on corporate parenting principles the importance of strong co-operation between the responsible local authority and all the other partner agencies that are critical to successful corporate parenting of looked-after children.

On Amendment 6, as I have said in previous discussions with Ministers, we cannot state too often that the Bill should remind partner agencies of their duty to co-operate with the responsible local authority in delivering the best outcomes for looked-after children. The fact that such a duty was set out in the Children Act 2004 does not, in my view, mean that we should not refresh that duty in this new, reforming Bill. It helps, if I may suggest it, to give local authorities leverage with partner agencies when those agencies face difficult priority decisions on how to use scarce resources. That situation, if I may say so, is a lot worse than when that previous piece of legislation was passed. Local authorities need all the help they can get to leverage support for the children they are responsible for from these partner agencies at a time of very difficult public expenditure situations.

These same arguments, I suggest, apply to Amendment 7, which the noble Lord, Lord Watson, will be elaborating on. I would be willing to forgo Amendment 6 if the Minister finds Amendment 7 more to his liking. I beg to move.

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[Lord Nash]

My Lords, I am grateful to the noble Lords, Lord Watson and Lord Warner, for the opportunity to discuss the most effective way of ensuring that partner agencies support local authorities in fulfilling their role as corporate parents, and grateful to them and the noble Baroness, Lady Pinnock, for their contributions to today’s debate.

Legal responsibility and accountability for looked-after children and care leavers rests with local authorities. We believe that maintaining this clear accountability is right to protect vulnerable young people. As such, it is important that the law is clear that local authorities are the corporate parents for looked-after children and care leavers. Section 10 of the Children Act 2004 already places a robust and clear statutory duty on local authorities to,

“make arrangements to promote co-operation”,

to improve the well-being of local children and care leavers in relation to,

“physical and mental health and emotional well-being … protection from harm and neglect … education, training and recreation”,

the contribution made by children to society, and “social and economic well-being”. The partners listed in Section 10 include the agencies necessary to support vulnerable children properly. This includes those listed in this amendment, such as health bodies and the police, but also organisations such as schools and further education institutions that local authorities consider appropriate.

I absolutely agree that partner agencies must be aware of their duties to co-operate with authorities to improve and have regard to children’s welfare under Sections 10 and 11 of the Children Act 2004. However, in practice, to fulfil these duties effectively local authorities would have to make relevant partner agencies aware of their obligations under Sections 10 and 11, so these amendments simply duplicate what is already legally required or necessary in practice to meet existing requirements regarding looked-after children and care leavers. I should add that, crucially, Section 10 goes wider than the amendment of the noble Lord, Lord Watson, as it also places a reciprocal and direct duty on partner agencies to co-operate with local authorities in this regard. Moreover, Section 11 of the Children Act 2004 places a direct duty on the bodies it lists to make arrangements to ensure that they have regard to the need to safeguard and promote the welfare of children when discharging their functions. Therefore, all the bodies within the scope of this provision will be required as of necessity to know about it.

When defining well-being, Section 10 actively addresses key areas where noble Lords rightly want assurance that all vulnerable children will receive high-quality support, such as mental health and emotional, social and economic well-being. This clear and holistic definition provides local authorities with a robust mandate for interagency co-operation to improve the wider well-being of children. Section 10 gives local authorities a strong lever to get the local co-operation needed properly to support vulnerable children and young adults in key aspects of life. The corporate parenting principles provide a further lever for local authorities to engage with key partners and utilise Section 10 arrangements to co-operate to improve the well-being of looked-after children and care leavers.

The fourth principle, in particular, provides for local authorities to have regard to the need to help looked-after children and care leavers access and make the best use of services provided by the local authority and relevant partners. Strong interagency working, underpinned by Section 10, will be crucial to achieving this. The statutory guidance on the corporate parenting principles will emphasise it. It is also important to recognise that there are numerous examples of local authorities and other agencies already working effectively together in the interests of looked-after children and care leavers.

In his report Residential Care in England, Sir Martin Narey refers to the protocol between 10 local authorities and four police services. The protocol aims to reduce the prosecution of children wherever possible by encouraging the use of restorative justice approaches. Trafford provides another good example of strong interagency working. Here, collocation of social workers with health staff and child and adolescent mental health services supports good access to services.

What Peers are seeking to achieve across the country—indeed, what we want—is already happening. It just needs replicating and this is about disseminating good practice and influencing hearts and minds. The corporate parenting principles aid that process because they apply to the whole authority and are intended to create a culture change. We recognise, of course, that, despite the existing legislation to promote interagency co-operation, practice is not always as consistent as it should be. We therefore plan to engage further with directors of children’s services on this issue with the aim of identifying other positive practice and disseminating it more widely.

Given the strength of the existing duties to co-operate under Section 10, our intention to reinforce this in the statutory guidance on the corporate parenting principles and to continue the drive to improve and embed effective practice, I hope the noble Lords, Lord Watson and Lord Warner, will feel reassured enough to withdraw their amendments.

[Lord Warner]

My Lords, I think it is a missed opportunity, but I am glad that the Minister is going to put some of this into statutory guidance. In the meantime, I beg leave to withdraw my amendment.

Amendment 6 withdrawn.

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[Lord Watson of Invergowrie]

My Lords, Amendment 10 would place a new duty on local authorities to take reasonable steps to provide care leavers up to the age of 21 with suitable accommodation. It would also end the inequality between young people in stable foster care placements, who are entitled to stay with their foster family until the age of 21 under the “staying put” arrangements, and other groups of young people leaving care.

The Bill rightly aims to improve outcomes for care leavers, a group of young people who, as many noble Lords have said, face significant challenges. However, as currently drafted, we do not believe that it goes far enough to make a real difference to young people’s lives. Organisations supporting these young people have consistently said that safe and stable accommodation must be the starting point for improving outcomes in other areas. Education, training, employment and health would be the main examples. A 2015 report by the National Audit Office found that young people with a background in care were more likely to become homeless or to end up in custody. Indeed, the most recent figures from the Department for Education show that, in 2015-16, 7% of care leavers aged 19 to 21 were in accommodation considered unsuitable and the suitability of the accommodation of a further 11% could not be established. Equally, 4% of care leavers aged 19 to 21 were in custody, and 40% of care leavers in that age group were not in education, employment or training. All these figures combined show the scale of the task that faces us when we seek to look after young people leaving care.

When most young people leave home, they are usually able to continue to rely on their parents, as the noble Lord, Lord Warner, said, for many things, not least advice as well as practical and financial support. Young people who have been in care do not have that support system open to them. Many have significant emotional and mental health needs which are often due to a history of abuse or neglect. The transition to adulthood can be daunting at the best of times for all young people. By definition, looked-after children rarely experience the best of times and have to cope with multiple changes: finishing school or college; moving from child and adolescent mental health services to adult services; and often the need to find alternative living arrangements. Even among children in different forms of care, there is real inequality between care leavers who can stay with their foster family under “staying put” and all other young people leaving care.

The Government have promised to pilot “staying close”, which would offer accommodation to young people leaving residential care, but we understand there is to be no duty on local authorities to do so, and there is certainly no clarity on funding. As it stands, if you are not in a stable foster placement at 18, you may well end up in an unsafe or unstable accommodation placement or be homeless or sofa-surfing. Outcomes for care leavers in general will not improve until this issue is addressed.

In 2014, the Government recognised the importance of safe, stable and appropriate accommodation for care leavers. “Staying put” arrangements mean some young people can remain with their foster family until they reach 21. In 2015-16, of those who ceased to be looked after on their 18th birthday and who were in foster care, 54% of 18 year-olds, 30% of 19 year-olds and 16% of 20 year-olds were able to remain with their foster family. However, for other young people, including those in residential accommodation, who may be the most vulnerable of all and have significant needs, no equivalent support is available. This Bill offers an opportunity to ensure that all young people leaving care have an appropriate place to live until they reach 21 to help them start their adult lives.

In July, the Government committed to piloting “staying close” in Keep on Caring: Supporting Young People from Care to Independence. The aim is to explore models of accommodation for young people leaving residential care. That is to be welcomed, but Amendment 10 enables us to go a step further. I hope that the Government will look upon it favourably.

Amendment 12 in my name amends Clause 2. It concerns the local offer for care leavers and seeks to set up a national minimum standard that would set out the quality and extent of services to be offered by local authorities to care leavers. In a later group, we will discuss the national offer. I am aware that the Government, at this stage at least, are not minded to embrace such a concept. Setting out a national minimum standard is a similar approach in the sense of avoiding the postcode lottery that we all understand and that applies in different ways in different settings. That lottery could allow local authorities in some areas to provide a much less satisfactory service to care leavers than is provided in others. That is why it makes sense to set a national minimum standard. It would be no more than a minimum to be built on but it is necessary so as to have something on which to fall back.

Regarding the other part of the amendment, it makes sense to consult appropriately to ensure that the basis on which the national minimum standard would be set was one that carried the benefit of the experience of the various corporate parenting partners. It is important to say that the setting of a minimum standard is something that we need to do because the patchwork effect of the accommodation issues to which I referred in commenting on the earlier amendment show that there is no common policy across the country. That, surely, is not acceptable. For that reason, I beg to move.

[Lord Warner]

My Lords, I shall speak in support Amendment 12, to which I have added my name, but I should like first to add my support to Amendment 10. Affordable single-person accommodation is one of the areas in shortest supply in many of our cities. This is the pool in which we are often trying to find accommodation for these young people. They do need a lot of support. We are asking them to live independently and to battle their way through what is often a confusing and difficult accommodation market. Even older, more mature adults find it difficult to survive in that market.

We are setting these young people up to fail if we do not do more to help them to get into safe and suitable accommodation. It is no wonder, sadly, that we find so many of these young people having been in care sleeping rough in many of our inner cities, including not far from this place. Anyone who late at night wanders around the South Bank will find some of these characters who have been in care having a difficult time. When you talk to some of them, you hear that they have never had good accommodation.

The Minister should take this seriously. When I was chairman of the Youth Justice Board this area was one of the major contributory factors to many of these young people moving down a path of crime and into the youth justice system. Tackling it is therefore in everyone’s interests, not just those of the young people. I strongly support Amendment 10.

I also support Amendment 12. Too often we pass reforming legislation without saying what would be an acceptable level of response by those responsible for implementing that legislation. There is a long history of the lifetime outcomes for looked-after children being inadequate. We shall come to the issue of outcomes in a later amendment. To address this long-standing problem, the Government would do well to set out some national minimum standards for the services that must be offered under their local offer for care leavers. Far too many young care leavers do not know what they can expect from the authority that has been looking after them when they move into the wider world.

From my experience as the commissioner for children’s services in Birmingham—appointed by the current Secretary of State’s predecessor but one, who has since gone on to further fame—one also finds huge variations in the performance of some of the leaving-care teams within the same authority. This is not an area that has been well served by consistency even within the same authority. Setting some national standards would not just be helpful for consistency between authorities but would help some of the bigger authorities to have consistency within themselves. So I strongly support Amendment 12.

[Baroness Bakewell of Hardington Mandeville]

My Lords, I speak briefly to Amendment 10 and to agree with the comments of the noble Lords, Lord Watson and Lord Warner. In the market town in my own area, the number of beds available for young people in the excellent Foyer has been reduced over recent years, and it is now in danger of actually closing. As well as providing excellent accommodation to allow young people, especially care leavers, to move on and gain independence, it has provided training, other support and a coffee bar. It is a great shame, to put it mildly, that such a facility should be closed because of the lack of funding for the number of beds there.

As the noble Lord, Lord Warner, who is much more experienced in this area than me, has said, young people, especially care leavers, are very vulnerable and they require adequate quality accommodation to meet their needs.

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[The Lord Bishop of Chester]

My Lords, I add my strong support for the amendment, which was moved by the noble Earl with a mastery of succinctness and clarity across the issues he covered, backed up by the other noble Lords who spoke. There are powerful arguments for the amendment.

We have just been talking about the importance of relationship education and support. That is exactly what care leavers typically do not have—by definition, if you like. Think of the degree of support that your Lordships have had to give to your children at the age of 19 to 24 and beyond. I see some smiles on your Lordships’ faces, and I could smile myself and put a price tag on it. It does not exactly run into millions of pounds, but it feels like it.

Giving a bit of extra help to those at that stage in their lives has a great deal to be said for it. Even if it cannot be given in all four areas set out by the Children’s Society in its briefing, some, at least, should be considered very carefully—I add that it is a Church of England society. I think the work it has done here is a model of professionalism. My right reverend friend the Bishop of Durham spoke to this on Second Reading, but he cannot be here today and I am happy to pick up the baton from him.

We are dealing with a group of people who typically have very little support—support we almost assume that our own children need at that age—so we must help with anything we can do. Earlier, I heard the Minister say that the danger with having a minimum or national standard is that it would interfere with what is provided locally. It is not either/or; it is both/and, surely. I did hear somebody on the television just a few days ago saying there is an important role for the state. I agree with the Prime Minister on this, and I think that there is a role here for national standards and encouragement.

Wonder of wonders, Cheshire East has been mentioned. It is a Conservative-run authority, blazing a trail, but should we leave it to a postcode lottery so that some authorities do this and some do not? That is very discouraging if you see it in those terms. While this is led by local authorities and a local offer, it does seem to me there is a strong reason for having a certain degree of national offer and national minimum standards. I think that is the spirit behind this amendment, and I strongly support it.

[Lord Warner]

My Lords, I support the amendment. However, I would like to put a very specific question to the Minister to which I would welcome a reply. The Minister will recall that, when you stand at the Dispatch Box, you speak for the Government, not just your department. When this Bill began, there was another Government he was speaking for, but he is now speaking for a new Government. That new Government have expressed great concern about helping those who are just getting by. This group of people are barely getting by and in some cases are not getting by. What this amendment does is provide a proposition which this Government—not the previous Government —need to consider. Can the Minister say whether this issue has been put to the new Ministers in the Department for Work and Pensions and DCLG? It would be very helpful to know whether this Government have considered this issue at a ministerial level and what their view is.

[Baroness Lister of Burtersett]

My Lords, what I would like to say follows on very well from the noble Lord’s very pertinent question. I am happy to support this amendment, which was moved so ably by the noble Earl, Lord Listowel.

A recent Joseph Rowntree Foundation document called We Can Solve Poverty in the UK, which was the product of a long and wide consultation, states:

“The prospects for young people leaving local authority care should be an overarching priority for government. Despite positive policy and legal developments, they continue to face unacceptably high risks of destitution and poverty”.

Destitution in 21st-century Britain for an extremely vulnerable group of young people really is unacceptable. As the noble Lord said, they are not getting by. In many circumstances, it is simply not possible for them to get by.

This amendment addresses some of the key policy drivers behind these very serious risks. The Government are rightly requiring local authorities to promote the best interests of care leavers up to the age of 25, yet their own policies fail to do so. I can see no justification for what surely must constitute double standards. There is a degree of acknowledgement of the arguments put earlier during the process of the Bill and of this case in Keep on Caring, which is very welcome, but I urge the Minister to go further today.

As already noted, no doubt cost will be cited. However, the costs are not prohibitive. Also, this needs to be considered in the context of another Joseph Rowntree Foundation report regarding the costs of poverty. It calculated that around two-thirds of total local authority expenditure on children’s services is attributable to poverty-related problems.

At earlier stages of this Bill, I quoted yet another Joseph Rowntree Foundation report, which looked at the links between poverty and the abuse and neglect of children. I quoted that report, which said:

“Poverty often slides out of focus in policy and practice”.

This amendment puts poverty back into focus and it addresses the severe poverty experienced by many extremely vulnerable care leaders.

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[The Earl of Listowel]

My Lords, I want to flag up an issue around the wishes and feelings of children, as raised by the noble Baroness, Lady Walmsley. At a recent conference I was listening to a researcher who was herself a birth family sibling—so she had many foster carers move through her family. One of the fostered children in the family just disappeared one day without any notice to her. She emphasised the importance of listening not only to the voices, wishes and feelings of the child in care, but also to those of the children in the adoptive family or in the foster family. We must make efforts to understand the wishes and feelings of those children, partly out of respect for them but also, very often, because a foster placement or an adoptive placement might break down if the wishes and feelings of those siblings are not respected. If they do not welcome the child, if they feel that the stranger is an intruder into their home, coming between them and their parents, they can very easily undermine the ability of that placement to work. I just wanted to flag up that point.

I welcome the fostering care stocktake that is going on in the Department for Education, which I hope will answer some of the concerns of the noble Lord, Lord Hunt, about parity of esteem for adoption, fostering and residential care. All these are important options. We want to find continuity of care for young people, wherever they are in the care system. I just wanted to flag up that point and I look forward to the Minister’s response.

[Lord Warner]

My Lords, my name is attached to Amendments 30, 31 and 34. I say to the noble Baroness, Lady King of Bow, that there have been Ministers in this House who have made concessions on the basis of the evidence before them; the noble Lord, Lord Nash, is not unique in this, although I am very grateful for the concessions he has made.

Let me start with Amendment 30. Going back in time to when I first became a director of social services in the mid-1980s, and having never, I have to confess, even been in a social services department in my life before, the very first briefing I was given by these luckless social workers who suddenly found that this strange man had been placed in charge of their department was on the importance of permanence and that if I did nothing else in my time as a director, I must promote planning for permanence. That has stuck with me as a big issue. The second briefing said: “You cannot rely on adoption to deliver permanence. Everybody likes to adopt babies and young children but you will find, oh dear director, that there are going to be a lot of children, from the age of 10 and moving into the teenage years, for whom you will have to plan for permanence, and adoption is not the issue”.

Any social worker starting out in their career over the last two or three years could be forgiven for thinking that the real answer to permanence is adoption. The points made by the noble Lord, Lord Hunt, are critical: if we believe in permanence as the aim of what we are trying to do—as we all do—we must not give any signals that longer-term fostering is not a perfectly valid option in planning for permanence. We must not delude ourselves, or allow ourselves to look as though we are deluding ourselves to the social work profession, that adoption is the only answer and that, somehow, longer-term fostering is an inferior option for permanence planning. So I hope that the Minister will think about that and what the impact of all this is on the profession, working day in, day out, on the front line trying to deal with and provide a more permanent solution for many of these children. We need an amendment of the kind that has been framed in Amendment 30 to restore the balance.

We discussed the issue in Amendment 31 pretty extensively in Committee. In those discussions I recall that the noble and learned Baroness, Lady Butler-Sloss, with all her experience in the family courts, said that all too often the voice of the child was absent from our legislation and court processes. She made much of that then, and there is an opportunity now, with Amendment 31—which, if I may say so to the Minister, is just five little words—to put clearly, fairly and squarely in the legislation an amendment that gives the voice of the child some recognition in the legislation. It will not cost the Government anything, so the easiest thing for the Minister to do shortly would be to stand up and say, “I accept Amendment 31”. He will then go out of this Chamber at the dinner break even more flushed with success and encouragement from the Members of your Lordships’ House. As the noble Baroness said on Amendment 34, this is a straightforward way of removing a disincentive to taking siblings into adoption. I am glad that the Minister is going to make a concession on that, but if he is in for one, why not go for a couple of others as well?

[Lord Nash]

My Lords, I shall speak to Amendments 30, 31 and 34, which concern the decision-making process about how a child becomes looked after and where they should be placed, and the state benefits which families of adopted children should be entitled to. There is also the matter of wishes and feelings. I am very sorry to disappoint the noble Lord, Lord Warner, but I understand that after very helpful discussions between the noble and learned Baroness, Lady Butler-Sloss, and my officials, she—or somebody on her behalf—plans not to move her Amendment 31. I believe she now recognises that it is not necessary, although my officials found the meeting with her extremely helpful. The child’s wishes and feelings are taken into account by local authorities when a child is looked after. This is a legal requirement under Section 22(4) of the Children Act 1989. When any decision is taken with respect to a child who is looked after, the local authority must ascertain their wishes and feelings.

Amendment 30, tabled by the noble Lords, Lord Watson, Lord Hunt and Lord Warner, proposes new wording for the permanence provisions of care plans in the context of care proceedings. As I stated in Committee in response to such an amendment, I recognise the concern that adoption should not be seen as more important than other long-term placement options. In answer to the point raised by the noble Lord, Lord Hunt, I can state clearly that there is no intention to create a hierarchy here between placement options. We want all children in care, or entering care, to find placements that provide stability and suit them. This is what we mean by permanence; there are different ways to achieve it for different children.

Clause 8 seeks to improve the decision-making process about where a child should be placed, whether that be adoption, with a special guardian, with foster parents or in a children’s home, by having particular regard to the child’s needs and how any placement options would meet those needs. The amendment seeks to explicitly set out in Section 31 of the 1989 Act a list of placement options, such as foster care. However, all placement options, including foster care, are already included within the current legal definition for permanence provisions. Section 22C of the Children Act 1989 and the accompanying statutory guidance set out clearly how all looked-after children, including children subject to care orders, are to be accommodated and maintained by local authorities. This includes a hierarchy of placements with parents, relatives, friends or other persons connected with the child, kinship foster placements with local authority foster carers and placements in children’s homes.

Local authorities and courts are very clear about what placement options they need to consider during care proceedings. Amendment 30 is therefore not necessary and would not add to the existing legislative framework. It would simply duplicate what is already set out elsewhere in the Children Act 1989, which is something that Governments always try to avoid. As the noble Lord, Lord Hunt, said, Section 22C clearly says that foster care is an option set out for local authorities and courts to consider, and this includes long-term foster care. Local authorities and courts understand this, and I am advised that no one is confused in practice on the issue. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Amendment 34, tabled by the noble Baroness, Lady King, and the noble Lord, Lord Warner, proposes a new clause so that child-related benefits would be payable to adopted children regardless of any limit on the number of children to whom those benefits are usually payable. As noble Lords will know, the Welfare Reform and Work Act 2016 legislated for the child element in child tax credit and universal credit to be limited to two children from April 2017. I was delighted to announce in my letter to noble Lords on 11 October that where a family adopts a child from local authority care and this increases the number of children in the family to three or more, all third or subsequent adopted children will attract the child element of either tax or universal credit. This will be provided for, along with the other exemptions, in regulations and is good news for families who come forward and give a loving home to some of our most vulnerable children. It represents another example of the Government’s ongoing commitment to support these children and their families.

I am grateful to the noble Baroness, Lady King, for her kind words. As the noble Lord, Lord Warner, said, I may not be unique in listening to rational arguments but I may be unique in being incapable of resisting the noble Baroness’s charms and the powers of her arguments. I am sure that we will all miss her and I wish her and her family all the best in California. I hope that it will not be long before we see her back on those Benches.

Amendment 32 would simply ensure that Clause 9 will now apply to adoption agencies in Wales, whereas the previous draft of this provision applied to courts in England and Wales and adoption agencies in England. It will also mean that the provision of the new duty will come into force at the same time in England and Wales. The department has agreement from the Welsh Government to lay this amendment, in anticipation of the Assembly scrutinising the required memorandum before agreeing a legislative consent Motion.

In conclusion on all the amendments that have been discussed, I hope the noble Lords, Lord Ramsbotham, Lord Watson, Lord Hunt and Lord Warner, will feel reassured enough to withdraw or not press their amendments, and that the House will support the Government’s amendment.

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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

Children and Social Work Bill [HL]

Lord Warner Excerpts

Wednesday 13th July 2016 Grand Committee

Moved by

[Lord Warner]

135B: Clause 20, leave out Clause 20 and insert the following new Clause—
“Regulation of social workers: General Social Work Council
(1) Her Majesty must by Order in Council set up a body to be known as the General Social Work Council, for the purpose of regulating social workers in England.(2) The General Social Work Council is to have responsibility for the following matters—(a) keeping a register of social workers and of people who are undertaking education or training to become social workers;(b) restrictions on practising social work and using titles related to social work;(c) professional standards in relation to social work;(d) education and training for social workers and those training to be social workers;(e) discipline of social workers and fitness of social workers to practise;(f) appointing advisers on the regulation of social workers;(g) the publication and sharing of information relating to the regulation of social workers;(h) cooperation with other bodies in respect of the regulation of social workers;(i) the charging of fees in connection with the regulation of social workers;(j) advising the Secretary of State on the creation of offences related to the regulation of social workers; and(k) consultation about the regulation of social workers.”

[Lord Warner (Non-Afl)]

My Lords, Amendment 135B seeks to replace the existing Clause 20 and much of Part 2 of the Bill with a new clause that establishes a new general social work council as an independent regulator of social workers accountable to Parliament through the Privy Council. This amendment needs to be seen alongside Amendment 135C, which seeks to set up a new social work improvement agency, and will be moved by the noble Lord, Lord Hunt. It is no accident that both these amendments have the same names attached to them. We all start from a totally different position from that of the Government on social work regulation and improvement, as I think was very clear at the briefing meeting on Part 2 held last week. That is why I enlisted the help of the clerks in producing this amendment, and I am very grateful to them for their efforts.

The purpose of Amendment 135B is twofold. First, it would separate the work of regulating social workers from improving their development. Secondly, it would make the regulation of the social work profession independent of Ministers, as is the case with all other health and care professions. Under Part 2, the regulatory and improvement functions are combined. I think this totally misunderstands the function of profession regulators, who are there to protect the public by setting and upholding standards of conduct and competence, controlling entry to the profession and taking action in response to concerns about conduct and competence. Regulators are not there to secure improvement to a profession’s training, practice or continuing development. Those functions are for others. The noble Lord, Lord Hunt, and others will say more about this second role when we come to the next amendment. All I would say now is that muddling these two separate roles is highly likely to produce a muddled and less-effective regulator. The former General Social Care Council, before its abolition by the coalition Government, was criticised for having an unclear remit covering both regulatory and improvement functions. A review of the Nursing and Midwifery Council in 2012 by the Professional Standards Authority criticised that council for increasingly seeing,

“its role as supporting the development of nurses and midwives beyond ‘fitness to practise’ and so had strayed into trying to provide a broader professional leadership role”.

Combining regulatory functions with those of professional development distracts people from the main purpose of a regulator, which is to protect the public by upholding standards. With the Bill in its present form, the Government are doing just that. They are repeating the failings of the General Social Care Council, which they abolished, and are not learning the lessons from the regulator oversight work of the Professional Standards Authority. The likely outcome is muddle and delay in the important fitness-to-practise work of a regulator that protects the public from unsatisfactory professionals.

The other major shortcoming of Part 2 of the Bill, as drafted, is that it could well lead to the Secretary of State exercising direct control over social workers. This can only jeopardise their professional independence and lead to a loss of public and judicial confidence in the independence of social workers. They could quickly be seen as agents of the state. This interpretation can most easily be avoided by the new regulatory body being independent of government but accountable to Parliament through the Privy Council. This amendment does just that, and has the added advantage that it avoids removing social workers’ regulation from the oversight of the Professional Standards Authority and retains the position it shares with other care professions. This will ensure the effectiveness of the regulation of social workers.

I recognise that the same effect could be achieved by keeping the regulation of social workers under the aegis of the Health and Care Professions Council, which would certainly be a little less disruptive and would avoid the cost of change. However, I can see the merits of the Government providing social workers with their own regulator and that that might enhance the standing of social work. The amendment provides for this. I hope the Government can see the force of the arguments for separating the functions of regulation and improvement, and for separating the governance of the regulator from too close a relationship with the Secretary of State. I hope it will be seen by the Government and the Minister as a reasonable compromise. I beg to move.

[The Deputy Chairman of Committees]

My Lords, I have to inform the Committee that if Amendment 135B is agreed to, I cannot put the question that Clause 20 stand part of the Bill by reason of pre-emption.

--- Later in debate ---

[Lord Nash]

I will come to that. In its totality of standards, there is very little which is focused on or particularly salient to social work education. The current regulatory model also does not focus on setting professional standards for post-qualification practice. This sets social work at odds with other professions, such as nursing and midwifery, and the current model sets requirements around continuous professional development which are generic and applicable to all the professions that the HCPC regulates. We believe there is clear scope for improvement, and I am glad that the noble Lord, Lord Hunt, agrees.

[Lord Warner]

Everything that the Minister said seemed to relate to social workers in the services for which his department is responsible. Is he saying that all these same considerations apply to social workers who work with adults? If he is, let us see the evidence. None of us has seen this evidence, and I have certainly not heard that there are these kinds of concerns about social workers who work with adults in a co-operative and increasingly joined-up way with the NHS.

[Lord Nash]

In relation to education and training, we are saying that.

[Lord Warner]

What expertise does the DfE have in relation to the work and performance of social workers working with adults? The Minister has no responsibility for that. His officials have no knowledge or responsibility for this area. Where is the evidence? Does this come from the Department of Health? Where has it come from?

[Baroness Walmsley]

My Lords, I did not get an answer to my question about which Secretary of State it would be. Strangely enough, although Clause 21 refers to “Secretary of State” in the singular, in his response the Minister talked about Secretaries of State. Will he clarify whether we are talking about the Secretary of State for Education and the Secretary of State for Health in agreement? If so, what will happen if they do not agree?

--- Later in debate ---

[Lord Nash]

As I said earlier, the recent report by the DPRRC agreed that it was not inappropriate for the Government to place the regulation of social workers in subordinate legislation, despite the width of powers being conferred. In respect of our ambition to establish a bespoke regulator of social workers, we believe that delegated legislation remains the most appropriate vehicle for a number of reasons. These include the level of operational detail in the establishment and transfer of regulatory arrangements, the need to regularly review matters such as professional standards, and the mechanics of operating a professional register, all of which, in our view, point to the need to make appropriate use of secondary legislation.

In closing, I reiterate that reforms are needed as quickly as possible. I believe that our approach can ensure a new system of regulation for social workers—designed in partnership with the profession—which is transparent and has the flexibility to meet the needs of this vital profession both now and in the future.

I hope that the safeguards and governance arrangements that I have set out, the commitment to wide-ranging consultation with the sector and a clear point of review will provide the necessary reassurance that the proposed model of regulation is fit for purpose. In view of this, I hope that the noble Lord will be able to withdraw his amendment and agree that these clauses should stand part of the Bill.

[Lord Warner]

My Lords, I listened to the Minister with increasing disbelief and I think that many Members sitting on this side of the Room did as well. I do not really know where to start, other than to say that I am totally unconvinced by his arguments. He and his department simply do not understand the difference between improvement and regulation, and I shall take up one or two points.

He said that fitness-to-practise decisions will be taken by experts on behalf of the regulator. That is what he said. But the regulator takes the decisions—that is why the regulator is set up. It is not some other set of experts but the regulator who takes the decision on fitness to practise, which effectively is often a decision to stop someone’s livelihood as a professional. That is why it is very important.

I found some of what the Minister said extraordinarily strange. He is asking us to take it on trust that there will be a set of consultation arrangements with the professions and all these interests if we just give him the powers in the Bill. That is the nub of what he is saying: “It will all be alright on the night because we are good guys and will consult people”. I might be more trusting of that if I had seen some evidence that the Minister and his department had consulted all these interests before coming forward with this Bill. In my view, one of the best predictors of future behaviour is past behaviour, and I do not see much sign that evidence has been put to the profession. There might have been a chat between the chief social worker and a few trustees out there, but to many of us it does not look like much more than that.

I am astonished that the Department for Education, of its own mere motion, is taking responsibility for the regulation and improvement of social workers who work with adults. There is a major machinery-of-government issue and my starting point is to go to the Cabinet Secretary and ask whether proper processes have taken place within government between these two departments. From the evidence I have seen and heard so far, they have not.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I do not intend to repeat the arguments of the previous debate, but I will pick up two things that are relevant to improvement. First, on my noble friend’s point about integration, those of us who are mainly health orientated find it quite extraordinary that at a time when health and social care are increasingly being integrated, adult social care regulation is being taken away from a health and care regulatory function and being put under the auspices of the Secretary of State for Education, who clearly has no remit or interest in adult social care.

It is well known that the Department of Health opposed the changes. As happens in the machinery of government, in the end it was forced to give way, but this is clearly a department that knows very little about the world outside education, that makes policy on the hoof and that has made a quick decision to legislate. This is clearly a cut and paste job given to parliamentary counsel at very short notice. We have here the makings of a complete shambles, which we know will end up in tears if allowed to go ahead. Everyone on this side of the House—we have huge experience in this area—knows that this is a shambles, a debacle in the making.

The more I hear the Minister, the more I agree with him on the issue of improving standards. There is no disagreement on the broad principles, it is simply that his department has confused regulation with improvement. It keeps insisting that they can be done together. The noble Lord, Lord Nash, said that the Professional Standards Authority has expertise and experience, and, of course, it does. I take him back to the evidence we received a few days ago about the importance of separating the roles of regulation and improvement. He said that the role of the investigative agency was to set and improve standards. What the PSA says is:

“Regulators are responsible for protecting the public by setting and upholding standards of conduct and competence, controlling entry to the profession and taking action in response to concerns about conduct or competence”.

On professional development and improvement, it says:

“Professional bodies, such as Colleges, are generally responsible for improvements to education, training, professional practice and continuing professional development”.

The Minister is consistently talking about the latter responsibilities, not about regulation. I have a low-cost solution, which is to focus on the improvement agenda, which we are all behind. I take his point about what happened in the past. I understand the tensions there between a statutory improvement agency and the role of BASW.

I thought that the Education Select Committee’s report was helpful in this regard. It set out what it believed should be the functions of a new professional social work body and said that it should:

“Be a ‘broad church’ that represents a diverse workforce of social workers in a range of settings … Provide high profile leadership and a national voice for the profession which explains what social work is and what social workers do … Make the profession an attractive choice by building a professional identity and culture … Defining the continuing professional development and post-qualifying pathway for all social work … Promote practice excellence … Shape and influence national and local policy and … Build good working relationships with the Government”.

It is a remarkably good report and I cannot disagree with it.

The report then says:

“We recommend that the Government facilitate the development of a professional body for social work, working in partnership with … (BASW), other social worker representatives and the wider sector”.

That seems perfectly sensible. Why do the Government not just do that? We would support it. I have no problems with the Secretary of State having oversight of such a body, so all that the Government need to do is to say that they will leave regulation to the HCPC and get on with the vital job of leadership and improvement. The Minister would have our support and he would not disrupt the profession with these really ludicrous proposals to take a low-cost, well-functioning regulatory system away from the HCPC, which his Government and that department put in place only three or four years ago. I beg to move.

[Lord Warner]

My Lords, my name is on this amendment, which is probably bad news for the Minister, and I support what the noble Lord, Lord Hunt, said. I want to add a couple of points on setting up a new unit by coming back to the issue of the Department of Health and adult social workers. It needs to be a unit which would deal with both groups of social workers, which means it needs some machinery that represents the interests of both the Department of Health and the Department for Education. I still see no really convincing evidence that it has been thought through in terms of those departments working together on something to benefit the range of social workers—those who work with children and those who work with adults. If we were to go down this path, there would have to be an agency or unit. I do not think one would mind what it is but it would have to be a convincing agency that looked across the spectrum of social work with children and adults.

I also want to pick up on some of the Minister’s comments in the discussion on my Amendment 135B. At the end of the day, if the Minister has all this money and wants to get on quickly—he said that he had the money and wants to get on speedily with the job of improving social work—then I would say, having been a Minister in government, that the fastest way to do that, as some of us have done, is to set up some kind of grouping across the piece. It would include the types of social workers for adults and children, and all the outside interests. The Minister could almost do that before the autumn and before we come to this on Report. At a later stage, that could be turned into an executive agency if he wanted to do that. There is nothing to prevent the Government putting in place very quickly indeed something of the kind that the noble Lord, Lord Hunt, suggested if they have the money and the capability. If they have those then they should do it; they do not even have to ask Parliament.

If the Government want to improve some of the training requirements for social workers, they could also have a conversation with the HCPC, which will be looking at education in September. It has committed to that as part of its work programme. I am sure that any regulator in this area would always listen to a government department or the Government of the day and consider the evidence for change.

If the Minister is really in a hurry and wants to take people with him, why does he not use what is available now, get on and have a discussion with the HCPC and set up a unit jointly with the Department of Health to do as much improving and make as many changes as he wants? Why are we all being subjected to, and spending some of the best years of our lives discussing, the shambles that is Part 2 of this Bill? It is a sad waste of parliamentary time and I do not think that it is terribly good for the profession, which is being subjected to a lot of uncertainty when it needs more confidence and more certainty. I hope that, even at this late stage, the Minister can see that there are some merits in the approaches of the two amendments.

[Lord Ramsbotham]

My Lords, I was attracted to putting my name to Amendments 135B and 135C because of their cleanliness and simplicity, and the fact that they picked up all the points that had been made in the Government’s policy statement, Regulating Social Workers, which was published last month. There was nothing missing. Furthermore, what the amendments proposed was independent and objective, and therefore they were likely to attract the support of the profession.

I could not help reflecting on two things. One was that when I was Chief Inspector of Prisons, when I inspected a prison that had an under-18 wing the social services were responsible for under-18s at that time, so I took a social services inspector with me. She said that if it had been a secure children’s home, it would have been closed because of the lack of facilities. Those facilities were then under the direction of the Home Office, which claimed to be responsible for young people in custody. That has always suggested to me that government should not get close to the delivery of these things.

The second thing, which I admit struck me as strange, was on page 19 of the Regulating Social Workers report. One paragraph says:

“Ministers will lead on issues such as setting standards and delivery of responsive improvement programmes to raise the calibre and status of the profession”.

The next paragraph says:

“While Ministers retain ultimate responsibility, decisions will be kept at arm’s length”.

How can you lead at arm’s length? It struck me that there was considerable confusion in all this and that therefore the Government can consider the clarity of Amendments 135B and 135C as helping them to deliver what they want. As the noble Lord, Lord Hunt, said, we all want improvement as quickly as possible, and I think that the profession does as well. We appear to be in the mire of confused thinking, which could be avoided by withdrawing from it.

--- Later in debate ---

[Lord Nash]

My Lords, in view of what the noble Lord, Lord Warner, said about how we are apparently wasting everybody’s time, I will try to be brief, but I shall deal with his first point about the involvement of the DoH. The two departments have been working very closely together and will continue to do so. I have two officials from the DoH here today, and both departments will be involved in the governance.

Amendment 135C seeks to establish a new social work improvement agency under the auspices of the Government which will have responsibility for promoting the highest standards of practice, conduct, education and training and professional development. I understand the intention that this new agency would work in partnership with an independent regulator to raise standards across the social work profession.

As noble Lords will be aware, regulators traditionally have three key roles: first, to set and maintain standards; secondly, to control entry to the profession; and, thirdly, to take action in response to concerns raised about registrants. These functions are distinct from the quality improvement activities commonly carried out by a professional body or college. We understand the concerns that have been raised by the sector and the Professional Standards Authority about conflating regulatory and improvement functions in the one organisation. We agree that the blurring of these functions can lead to conflicting and competing priorities, and can leave regulators open to accusations of marking their own homework.

Let me be clear: we do not intend to set up a regulator that also doubles as an improvement agency, nor are we setting up a professional body. The agency, however, will have a remit that goes beyond simply setting minimum standards for public protection. Just as the GMC standards define good medical practice, so the standards of the new regulator will seek to set out what constitutes good social work practice rather than what is just acceptable. Social work requires an approach that goes beyond the traditional safety net role of professional regulation. Social workers take critical and complex decisions in high-risk environments on a daily basis. Therefore, it is only right that regulation is focused on ensuring that all social workers have the knowledge and expertise to not only be fit to practise but to be able to practise well. We make no apologies about this.

Unfortunately, the social work profession has been unable to sustain a professional body to support the work of a regulator in raising standards. Most other healthcare professionals are supported by strong professional bodies which take an active role in quality improvement, supporting and completing the work of the regulator. The Government have invested significantly —over £8 million, to which the noble Baroness, Lady Walmsley, referred—in the College of Social Work to address this gap. However, the College of Social Work was unable to attract the membership required to make it financially sustainable.

The Government understand that the development of a strong professional body is important to raise the status and standing of the profession in the long term. The Government cannot do this alone. An organisation that can articulate the views and interests of social workers and complement the work of the regulator is needed. However, our recent experience with the failed College of Social Work makes clear that this is for the profession to develop, own and maintain. We are not asking the agency to also perform this role. We are happy to continue to talk to the sector about whether it can establish its own body but, as I say, it must be developed and maintained by the sector.

As I set out previously, to bring about the reforms needed the social work profession needs a bespoke regulator with an absolute focus on raising the quality of social work education, training and practice and setting new and more specific standards. Alongside improvements to the regulatory system we will, of course, continue to invest in supporting the profession. The new agency will have a wider regulatory remit than traditional regulators and will go beyond minimum standards. It will do this through the setting of specific and higher standards.

The reforms that are needed to practice standards cannot be addressed through the development of an improvement agency. To allow us to rapidly deliver improvements and to embed the new regulatory system, the regulator will set new tougher standards for initial qualification, focus on professional standards for post-qualification, set new standards for continuous professional development, maintain a single register of social workers and oversee a fitness-to-practise hearing system, to which the noble Baronesses, Lady Pitkeathley and Lady Pinnock, have referred.

I can assure noble Lords that the Government do not intend to set up an agency with dual and conflicting roles. The new regulator will ensure that all social workers have the knowledge and expertise needed not only to be fit to practise but to be able to practise well. I hope the arguments I have set out will give the noble Lord the confidence to withdraw the amendment.

[Lord Warner]

Perhaps I may take the Minister back to his opening remarks, which were meant to reassure me because he had a couple of Department of Health officials behind him. However, the Minister is not taking seriously the machinery of government issue.

Children and Social Work Bill [HL]

Lord Warner Excerpts

Monday 11th July 2016 Grand Committee

I find it very difficult to support a clause setting up a review system which has no mechanism for implementing the results of the review or for setting out its purposes or particular powers in some detail. Leaving it to regulation, and a little extra guidance as well, really is not law; it has become—what shall I say?—less than law. Some people may think that that is better but, unfortunately, that kind of thing only complicates the legal case. If people are anxious to prevent lawyers having more to do, this is not the way forward in that direction.

[Lord Warner (Non-Afl)]

Will the Minister think about a very simple question? If you take powers to bring things up to national level and away from local level, I suggest that you then have an obligation to monitor what happens to the output from that new national body and to account yourself for whether anything has been implemented. Can the Minister explain to the Committee a little more about how that aspect of all this is going to work?

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

My Lords, in this group Amendments 105, 107, 108, 109, 109A and 110 concern places of detention, serious child safeguarding cases and serious harm. I am grateful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Baroness Walmsley, for these amendments. I particularly thank the noble Lord, Lord Watson, for his very encouraging opening remarks—but I understand that the new Prime Minister will not be in No. 10 until Wednesday evening, so noble Lords will probably have to put up with us at least until then.

Before I turn to these amendments, I confirm that I would be delighted to convene a meeting to give noble Lords more detail on the Child Safeguarding Practice Review Panel. A meeting was specifically requested at our last Committee session by the noble Lord, Lord Warner, and the noble Baroness, Lady Pinnock, but the invitation obviously extends to all noble Lords.

I will begin with Amendments 105, 107 and 110 concerning places of detention. I had hoped that I had reassured noble Lords about the independence of the Child Safeguarding Practice Review Panel at the end of the last Committee sitting—particularly the noble Lord, Lord Watson, and the noble Baroness, Lady Howarth, who raised these concerns. As I said then, the establishment of a strong, independently operating national panel is essential. Because of its independence, the panel will have the autonomy to use its judgment about the circumstances in which it deems it necessary to carry out a national review, although we intend to provide guidance that will aid its decision-making in this regard. I assure the noble Lord that we will take particular care to reflect on the importance of children held in detention, and to consider carefully the ways in which the guidance for the panel reflects not just the deaths of children, but children who have been abused or neglected.

The existing 2015 statutory guidance, Working Together to Safeguard Children, sets out that a serious case review should always be carried out when a child dies in custody, in police custody, on remand or following sentencing in a young offender institution, a secure training centre or a secure children’s home. The same applies where a child dies who was detained under the Mental Health Act. We will want to consider carefully how any new guidance produced for the panel takes this into account, bearing in mind the panel’s basic functions of the panel.

On Amendment 109A, I can assure the noble Lord, Lord Ramsbotham, that anyone may notify the panel of serious events in institutional settings, or indeed of such events in any place. Clause 13, as drafted, deals with requirements on local authorities but does not prevent others making direct notifications. In respect of the proposal to add a specific reference to guidance, I assure the noble Lord that Clause 12 already provides for the panel to have regard to any guidance issued by the Secretary of State in respect of its functions, and Clause 13 provides the same in respect of local authorities’ duty to notify. We will make it clear that others may notify the panel of events directly.

I now turn to Amendments 108 and 109. Amendment 108 seeks to add to the definition of serious child safeguarding cases by including specific reference to cases where physical injuries or harm are caused by unlawful or abusive restraint in any institutional setting. Amendment 109 seeks to broaden the scope of the definition of serious harm to include both ill treatment and the impairment of physical health. I agree entirely with the premise behind the amendments. However, inevitably, any such definitions cannot be exhaustive and include all circumstances, or cover all settings within which children might suffer injury or harm.

The definition in Clause 12 of serious child safeguarding cases includes reference to children who have been seriously harmed. This is based on the definition set out in the current safeguarding statutory guidance, Working Together to Safeguard Children, which was drawn up following consultation last year. The definition of serious harm includes the factors stated in subsection (9). The wording proposed is not intended to cover all scenarios. Great consideration was given to the factors to be included in the definition of both serious child safeguarding cases and serious harm for the purposes of the clause. It will be for the panel to consider each case in line with these definitions to identify serious child safeguarding cases and determine what form of review is required. We expect that to include cases where factors such as those outlined by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Walmsley, are a feature.

Clause 12 sets out the functions of the new panel. The panel will identify serious child safeguarding cases in England that raise issues that are complex or of national importance. The purpose of any such review will be to ascertain how practice by local authorities or others to safeguard children can be improved as a result of learning from the cases. I assure the noble Baroness, Lady Meacher, that this is about improvements in practice that can be disseminated nationally, not about the blame or public censure of individuals. Any disciplining of individuals will be done through the usual employment processes where they are working, or with reference to professional bodies, if needed. Reports on serious cases should not name individuals, whether they are professionals, children or family members. Writing reports in a way that ensures individuals are not named has been a long-standing convention in serious case reviews, and this should continue under the new arrangements. I assure the noble Baroness that the guidance will make this point absolutely clear.

As for her point about Amendment 114, we will come to it in detail in two groups’ time.

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[Lord Nash]

My Lords, I will speak to this amendment, which enables a request for information by the Child Safeguarding Practice Review Panel to be enforced. It is essential that the panel is able to request information to enable it to perform, or assist it in performing, its functions. This may also include normally privileged information, which is frequently an integral part of what has to be considered as part of the review process. This is already set out in Clause 14.

This amendment enables the panel to apply to the court for an injunction, should a person or body refuse to comply with a request by the panel for information. In the case of normally privileged information, the panel will consider the reasons for that. It may ask the person or body to justify any refusal, but may ultimately compel that information to be provided. As previously discussed, however, this provision would not apply to the judiciary, whose independence is a constitutional matter.

The Wood review highlighted the critical importance of effective and speedy sharing of information and data in relation to protecting and safeguarding children. This clause will underline the importance of sharing relevant information with the panel, backed up with the power of enforcement. I beg to move.

[Lord Warner]

My Lords, we had a good go over the issue of the judiciary on our last Committee day. The Minister slid very quickly over this particular issue in his remarks—namely, that judges are exempt. Can he pray in aid what the provisions are that stop a review panel looking at the conduct of a judge? We spent a lot of time on the case of Ellie Butler, but that was clearly a case where the practice of the judge could be called into question—not just on the individual circumstances but on the systems issue of whether the judge could actually replace social workers who had been protecting the child for some period and bring into being a new review of the child’s circumstances by a set of private social workers, for whom the child was a new client. That is a systems issue; it is not just about the judgment of the judge but about a piece of practice that seems to me to be at least arguable. Why, in that set of circumstances, should the judiciary be exempt from review by this panel?

[Lord Nash]

I will write to the noble Lord about that.

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[Lord Warner]

My Lords, could I ask a number of questions, particularly in relation to Amendment 116, on information? Before doing so, I will leave the noble Lord with a thought about my experience of local safeguarding boards in Birmingham, when I was the Children’s Commissioner there. A common feature of that board, which covers a very big area—I suspect it is a common feature of many other of those boards—was that often there was no consistency in who turned up for the meetings between the different agencies. There is a moving cast of characters turning up at these boards on behalf of particular agencies. Unless we can ensure greater consistency, we will not make those boards more effective.

On Amendment 116, I am not sure whether the Minister knows that some of us have been involved for a very long time—it seems as though it is since Adam and Eve—in trying to get the public agencies to accept a common identifier for children. If we want information to flow smoothly and quickly between agencies for children, particularly those who are at risk and in the child protection system, we need to listen to some of the people who have been working on this, such as Sir Cyril Chantler, an eminent paediatrician often used by the Government to undertake inquiries, to progress that. If you talk to paediatricians who have been involved in this area, the common villain of the piece—I use the term loosely—is the Department for Education, which simply will not accept that the NHS identifier is the best one to use because all children have one. Will the Minister take this back to his department and have another go? If he wants information to flow smoothly in child protection cases between the agencies, let us move towards using the NHS number as a common identifier. I assure him that that will get the information moving much faster through all the agencies concerned.

[Baroness Tyler of Enfield (LD)]

I shall add one more question to those posed by this very important set of amendments about how to improve local arrangements and have more effective multiagency safeguarding. I can think of nothing more important than that this works.

When I looked again at Alan Wood’s very interesting report, I saw two sentences that so far have not been picked up in this debate. They read:

“I would also add that national government departments do not do enough to model effective partnership working between themselves for local agencies. The join up demanded of local partners is not particularly evident at national level”.

For the new arrangements to work, and it is critical that they do, it is vital that government departments are modelling more effective collaboration in the area of safeguarding. I would be grateful to the Minister if, when he responds, he could tell us what steps government departments are taking nationally to model this behaviour.

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[Lord Warner]

I will speak to Amendment 130 in my name and that of the noble Baroness, Lady Walmsley. I will also speak to the proposed deletion of Clause 15 from the Bill. Rather unusually, I would prefer that Clause 15 were removed from the Bill altogether than that the Government accept the amendment in my name and that of the noble Baroness.

Given the widespread concern outside this House that the noble Lord, Lord Watson, has already mentioned, we need to understand much better than we do at the moment why the Government are so keen to have this sweeping power in Clause 15. I find the underlying premises of Clause 15 extremely strange—even more so than when I spoke about the clause at Second Reading. First, the clause seems to presuppose that in some way legislation is blocking the delivery of good quality children’s services. There was an opportunity to explain these alleged blockages in the Minister’s latest document, Putting Children First but, on a quick read, I cannot see that that opportunity was taken except for some rather generalised remarks about testing “deregulatory approaches” and a quote from Professor Eileen Munro about “unnecessary legal rules”. But my understanding is that in her review of child protection, Professor Munro was not arguing for changes in primary or even secondary legislation, but for amendments to statutory guidance. Will the Minister clarify what the primary and secondary legislation blockages are, preferably in writing to all members of the Committee before Report?

To compound the confusion, I understand that the Government have already used existing statutory power to amend statutory guidance following the Munro review by issuing directions to particular local authorities. Ofsted’s annual report shows local authorities adopting innovative practice without the need for changes in legislation. Moreover, as the noble Lord, Lord Watson, mentioned, the Government’s very own Red Tape Challenge, as it was called in 2014, seems to have revealed very little to remove for children’s services. Again, will the Minister clarify that, preferably in writing? So far, the Government have produced no evidence that primary or secondary legislation is impeding innovation in children’s services. They already have plenty of scope for amending statutory guidance or issuing directions to particular local authorities without the wide-ranging power to repeal or modify children’s social care requirements in Clause 15 that would last, I understand, for at least six years.

One is entitled to be a little suspicious about what the Government are really up to with Clause 15. Of course, I am the sort of chap who takes for granted that Ministers are well intentioned when they bring measures before your Lordships’ House, but could it be that what lies behind this provision is a short-cut way of outsourcing whole chunks of services? Ofsted seems to be claiming that up to 25% of children’s services are inadequate. Rather than working with some external turnaround capacity to improve matters, is there a new-found enthusiasm within DfE for trying to get quicker results by removing legislative impediments to outsourcing?

Personally, I have no particular objections to outsourcing if that can be shown to have a beneficial effect for children after trialling. I have been trying to probe what the DfE is up to with the transfer of children’s services to trusts. On the answers that I have received, this is clearly an expensive process, it can be very time-consuming, accountability can become extremely blurred and at present there is no body of evidence to support it as a general remedy for failure. Moreover, the DfE has still to publish the report that it commissioned in 2014 from LaingBuisson into developing capacity and diversity in the provision of children’s services. I know from my involvement in that work that it did not suggest that creating a market in children’s services would be easy.

I turn briefly to Amendment 130, which would require the Secretary of State to set up an independent review panel to consider whether any exemptions or modifications under Clause 15(2) are likely adversely to affect the legislative safeguards or rights of children approved by Parliament and to consider the published advice of such a panel before acting. I consider this the least that we should do if the Government persist in proceeding with Clause 15. To sum up, we need much more transparency and clarification from the Minister on why the Government need Clause 15 and why they cannot use their existing powers of direction and statutory guidance to secure their espoused innovation objectives.

[Baroness Walmsley]

My Lords, I support the noble Lord, Lord Warner, in arguing for this amendment. If these clauses eventually remain in the Bill, which is in considerable doubt, although I will leave it to my colleagues to argue that case, it is vital that children’s rights and entitlements are not diminished in the process. These clauses, to my mind, fundamentally undermine rights that have been enshrined in children’s social care legislation following intensive debate in Parliament. They are to be removed at our peril. However, given that some local authorities have seen an 82% increase in the number of children in need between 2010 and 2015, at the same time as local authority budgets have continued to decrease, there is a danger that these new powers might be seen as a way to save money. However, undermining children’s basic rights should not be the penalty for innovation. Many local authorities have vastly improved the service that they give to vulnerable children by trying new things without seeking any exemptions from the children’s rights.

The noble Lord, Lord Warner, mentioned Professor Eileen Munro. He is quite right that she never suggested that we needed to repeal primary or secondary legislation; she just asked for less onerous guidance. Innovation has been done effectively through waiving statutory guidance in some authorities. Importantly, outcomes have been monitored and reported on and it is from such reports that lessons are learned. That is the way forward.

I question the necessity for this part of the Bill. In particular, I want to ensure that the Secretary of State can be assured by independent experts that the benefits to children’s rights will be greater than the risks. The key word here is independent because, according to the Bill, the only people who have to be consulted are the Chief Inspector of Schools and the Children’s Commissioner. I point out that both of them will already have been appointed by the Secretary of State. Although I have every respect for the current incumbents of those offices, we need more independence than that. That is why I support this amendment. Innovation should be encouraged within a framework of fundamental rights and entitlements within the law.

--- Later in debate ---

[Baroness Walmsley]

Before the Minister replies, would he reflect on the fact that those of us who came to the meeting last Thursday were given what the noble Lord, Lord Hunt, is asking for—three examples of where local authorities would have liked exemptions—and that we were not convinced by any of them? In every case, we could think of another way in which that difficulty could have been got around by a creative local authority in order to produce better outcomes for children, and of course there is no other excuse for doing it. We really were not convinced.

[Lord Warner]

I really must help to reinforce this message to the Minister, because from what he has said so far he does not seem to get it. What we need, in writing, are the primary and secondary legislation blockages that are stopping innovation and why in those cases you cannot use the Secretary of State’s power of direction or an amendment to the statutory guidance. That is the issue, and he has not come anywhere near tackling that proposition.

[Lord Nash]

I heard the noble Lord the first time. I have not got very far but if I am allowed to continue I shall get to it. This power is about creating a safe mechanism to test new ways of working to improve outcomes for children. It creates a controlled, time-limited space to test new ideas. It is not about eroding children’s rights or removing the basic duties of local authorities to safeguard children. The power is not about questioning the fundamentals of what local authorities need to do, but about exploring how things could be done better.

I will try some more illustrations. I do not suppose they will get me very far but since I have more to say, perhaps people could bear with me. I shall illustrate this point with two examples. First, it is felt that on some occasions applying the full gamut of care-leaver regulations associated with children on remand, who automatically become looked-after when in custody, is not always the best option for those children. Local authorities are interested in developing a service that better responds to their needs, informed by the young person, which, where a local authority can make a professional decision, would ensure better and informed choices without an unwanted service automatically being triggered by legislation. A real-life example of that was given to us by one of our partner in practice local authorities. In this instance, the young person was returning to live with their grandmother. Applying the burdens and processes associated with looked-after children placements unnecessarily overcomplicated matters for both the authority and, most importantly, the young person and their family.

Secondly, as I highlighted at Second Reading, there is a widespread view that adoption and fostering panels do not always add value, and can often delay the process of approving prospective carers. These panels are only advisory, with the ultimate decision resting with the local authority. Local authorities explain that they think they could get to the same decision quicker without the panel in some circumstances. The freedom likely to be requested would be to remove the requirement always to have the panel in place for all cases, and for the agency decision-maker, who currently makes the decision, to continue to exercise their professional judgment. In straightforward cases, the decision would be made quicker to allow the best solution to be progressed faster so that children get the support they need. I heard what the noble Lord, Lord Watson, said about the concerns that Coram has in this respect, and we will be very happy to talk to Coram about its concerns in some detail.

I will speak to other examples as I go through my response to the amendments. In turn, the department will look to evaluate the use of the power so that we understand the impact, where there is a case for permanent changes to the legislative framework—changes that would of course come back for further scrutiny to this House.

I turn to Amendment 129, clarifying the purpose of this power to innovate. I agree that a focus on improved outcomes for children and young people is key. However, the drafting of the clauses already makes clear that the power is focused on outcomes for children and young people. Clause 15(1) refers to children’s social care legislation. The Children Act 1989 and its associated legislation is designed with the outcomes for children and young people at its core. By referencing children’s social care legislation explicitly, it is clear that the clause is directed at outcomes for children and young people.

On Amendments 130 and 131, I agree that the Bill should not lead to any changes that adversely affect the rights of children or lead to the withdrawal of support or services that they depend on. The whole point of these clauses is to allow local authorities to do things better. We do not propose to put an independent review panel in place. However, there will be a variety of safeguards in place to ensure that the power is not misused and that all applications are subject to very robust consideration before they are approved.

In particular, I draw noble Lords’ attention to the requirements both on the local authority to consult its safeguarding partners and relevant agencies and on the Secretary of State to consult Her Majesty’s Chief Inspector of Education, Children’s Services and Skills and the Children’s Commissioner. Of course, representing the views of children and young people is a key part of the Children’s Commissioner’s role, and Ofsted will also need to consider its functions of promoting the best interests of children when consulted on the use of the power. It is also important to note that any changes to primary legislation will be debated in both Houses, which in many ways constitutes the independent reviewing process that these amendments seek. In answer to the point on consultation with children in care and their representatives made by the noble Lord, Lord Wills, I agree that the voice of the child should be recognised when requested freedoms are being considered.

While I am not proposing to accept the amendment, I would like to provide reassurance that children are at the core of this provision. In most cases, we would expect local authorities to have consulted children affected by any change and in fact many of the possible changes that local authorities have discussed with us originate from requests from children, as I have already said. For example, in the case of independent reviewing officers, children have fed back to our partner in practice authorities that they do not like additional people who they do not know to be present at their case reviews discussing intimate information. More specifically, in the case of North Yorkshire, just over 400 children and young people are looked after. The vast majority are very settled and achieving well. Older young people in this position tell the authority that they find regular formal reviews unsettling and that they would like to be treated like their non-looked-after peers. There is then a much smaller number, on average 20, who are not currently settled and require regular in-depth reviews. This is one area in which a request for use of the power to innovate may well be made to make more effective use of the experienced cohort of independent officers.

The noble Lord, Lord Watson, talked about the risk assessment of exemptions. I agree that it is vital that we consider this carefully before any exemptions are agreed. We will need to do that, looking at the merits of each application from the local authority, when bringing forward regulations under Clause 15. Noble Lords may know that in responding to the DPRRC report I committed to bring forward an amendment to ensure that all regulations will be accompanied by a report setting out anticipated benefits and the protections to be put in place by local authorities to mitigate risks. That, combined with the other safeguards that we have in place, means that risk will be assessed and managed.

The noble Baroness, Lady Bakewell, raised a point about how local authorities would be chosen. I would expect any local authority that wants to apply for an exemption to demonstrate strong leadership and either strong performance or a clear trajectory of improvement consistent with the approach that it wants to test. Ultimately, the Secretary of State will not take forward any requests if she has concerns about the local authority’s ability to implement the change safely or to learn from the testing and share its insights with the wider sector. That is why I anticipate that the first application will be from our partner in practice authorities—a group of 11 of the best-performing children’s services in the country.

The noble Lord, Lord Warner, and the noble Baroness, Lady Walmsley, raised points about Professor Eileen Munro and what she wanted. She said:

“I welcome the introduction of the power to innovate set out in the Children and Social Work Bill. This is a critical part of the journey set out in my independent review of child protection towards a child welfare system that reflects the complexity and diversity of children’s needs”.

I am delighted that so many noble Lords have referred to excellent examples of innovation by various local authorities, but of course just because some innovation is taking place without changes to legislation does not mean that others will be able to innovate without making such changes. Of the examples that we have been discussing with local authorities, all need exemptions from secondary and in some cases primary legislation. I will write to the noble Lord, Lord Warner, setting out what primary and secondary legislation blockages are in place before Report.

To answer the noble Baroness, Lady Pinnock, there are no limits to what can be requested; the Secretary of State is concerned about the impact on children, and if she thinks it is appropriate, it will proceed.

However, in view of noble Lords’ concerns and suspicions about our motivation, the best way forward—in addition to writing to the noble Lord, Lord Warner, and sharing that letter with all Peers—is to have what I suggested. I hope that all noble Lords who are interested will come to a meeting with a number of local authorities and individuals where they can explain in detail why they need this power, and noble Lords who feel that they can achieve the same objective without using it can talk about that. We can have a detailed, granular discussion about specific examples, rather than a high-level discussion, which is always, in my view, rather dangerous. I commit to organising that, and I hope that all noble Lords will attend.

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Tabled by

[Lord Warner]

130: Clause 15, page 13, line 28, at end insert—
“( ) Before making any exemptions or modifications under subsection (2), the Secretary of State must consider the published advice of an independent review panel established to consider whether any such exemptions or modifications are likely adversely to affect legislative safeguards or rights of children approved by Parliament.”

[Lord Warner]

I do not intend to move this amendment but I want to reinforce a point that has been made already. I look forward to seeing the Minister’s letter but it is not just a question of satisfying me and Members of this Committee. The letter had better be pretty convincing to many people outside, including the Association of Directors of Children’s Services, because the issue is not whether you can make some changes; as the noble Lord, Lord Hunt, said, it is the proportionality of the scope of the amendment that is called into question.

Amendment 130 not moved.

Children and Social Work Bill [HL]

Lord Warner Excerpts

Wednesday 6th July 2016 Grand Committee

[Baroness Hodgson of Abinger (Con)]

My Lords, I support Amendment 90 tabled by the noble Baronesses, Lady Walmsley and Lady Pinnock. In many cases it must be truly terrifying for a child who feels that their future is out of control. It surely is absolutely imperative that they be listened to and given the feeling that their wishes will be respected. Disregarding them will only add to their trauma and the feeling of insecurity they are going through. Surely, any solutions are likely to be less successful if they do not have buy-in from the child.

[Lord Warner (Non-Afl)]

My Lords, I support Amendments 89 and 90. I say to the Minister that in any legislation you cannot sprinkle too many references to taking account of children’s wishes and feelings. I encourage the Minister to be even more liberal than the measure proposed by the noble Baroness, Lady Walmsley. I very much support the amendment spoken to by the noble Lord, Lord Hunt. I say that having been on the Select Committee on Adoption Legislation, which was so ably chaired by the noble and learned Baroness, Lady Butler-Sloss. We heard a number of pieces of evidence in which concern was expressed about whether the balance between adoption and fostering was getting out of kilter. I have certainly been in the company of social workers—I will not say where or when, but reasonably recently—who have talked about the adoption “hawks” taking over the Department for Education. The prospects of older children who are fostered being adopted are extremely limited. Therefore, we should give stronger encouragement to long-term fostering arrangements and indicate in the Bill an equivalence between adoption and long-term fostering that is currently lacking. Sometimes we get carried away with what can be achieved with adoption, which I support. However, it is not right for everybody and where children have established a good fostering relationship with foster parents, we need to encourage that and not make foster parents feel like second-class citizens.

[Baroness Butler-Sloss]

My Lords, I support all these amendments and pick up what the noble Lord, Lord Warner, has just said. I entirely agree with him about supporting long-term fostering as a very important alternative. However, we are living at a time when adoption is not doing very well. One has to recognise that as much support for adoption as possible should be given because, since the publication of the Adoption Post-Legislative Scrutiny report by the Select Committee to which the noble Lord referred, which I chaired, we have had fewer adoptions. We have to bear that in mind. However, I totally support the idea that long-term fostering is an extremely important alternative, particularly for the older child who wants to retain some links with the natural family, and for whom adoption is therefore inappropriate.

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[Baroness Bakewell of Hardington Mandeville]

My Lords, I support the amendments in this group tabled by the noble Lord, Lord Watson of Invergowrie, and shall speak specifically to my Amendment 92. Grandparents play among the most important roles in a child life. The Children Act 2004 removed the right of grandparents to have access to their grandchildren. While this may be necessary in some cases, I believe that it was a retrograde step. In recent weeks, we saw the tragic case of Ellie Butler who, after five happy years with her grandparents, was returned to the care of her parents, with disastrous results. Her loving grandparents had been in the process of adopting Ellie legally. All was going well with the support of the local council, when the adoption was blocked by a social worker. As we all know, the decision to disregard the grandparents led to Ellie’s early death. We have already debated the need to listen to the views of the child and for communication with the child. It is essential that children’s wishes, including staying with supportive grandparents, while still having some access to their parents, are adhered to wherever possible. I am firmly of the opinion that now is the time to reinstate the importance of grandparents in a child’s life and would like to see this amendment in the Bill. I look forward to the Minister’s response.

[Lord Warner]

My Lords, I support Amendments 91 and 92. I declare my interest as a grandparent several times over. On siblings, we now know a lot more about the importance of siblings to children taken into care than we did when the 1989 Act was passed. It is too often forgotten that siblings have often gone through the bad experiences that the children taken into care have experienced. There is a bond over some of the bad things which have happened to them which is important for their survivability in future. We too often underestimate the importance of siblings, and I therefore very strongly support the amendments tabled by the noble Lord, Lord Watson.

I was seriously shocked by the Ellie Butler case. I thought it was the most appalling outcome for that child, and I will return to this issue on a later amendment. We have rather lost the plot on grandparents, who are a major resource for caring. We seem to forget that people can become grandparents very much younger than in previous eras; they can be grandparents in their late 40s and early 50s. In addition, grandparents are living longer and many of them are living fitter lives; they are quite capable of dealing with children. We are missing a trick in not recognising grandparents as a serious care resource. We should try to establish that very firmly in the Bill and recognise that we are in a very different position with grandparents from that which pertained several decades ago.

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[Lord Watson of Invergowrie]

My Lords, I think it is fair to say that this is the most contentious issue to have arisen in our consideration of the Bill so far. We will discuss Clause 15 next week. In passing, I have to say that I am not quite sure why this measure is being discussed at this point. The noble Lord, Lord Ramsbotham, has stated his views on that, but I wondered why the Clerks did not direct it elsewhere. However, as I say, we will discuss Clause 15 next week. That clause will allow local authorities to opt out of providing some children’s social services. Many people fear that that could pave the way for the privatisation of those and—perhaps, later—other services, in ways outlined by noble Lords in this group of amendments.

The Bill refers to “different ways of working”, which I think most of us understand is code for exempting local authorities from requirements hitherto imposed by children’s social care legislation. Certainly, Labour holds strongly to the view that child protection and wider social care should not be run by an organisation seeking to make a profit. That is why we have joined with Lib Dem and Cross-Bench Peers, as well as the right reverend Prelate the Bishop of Durham, demonstrating the breadth of support for that requirement to appear on the face of the Bill.

We do not object per se to outside organisations working with, or for, local authorities in delivering children’s social services functions, but do so where a company or organisation designed to make a profit, as opposed to a surplus, takes on such functions that would expose the local authority—and, by definition, the children under its care—to the danger that the company might for whatever reason fail, and fall into receivership. Unfortunately, there is no shortage of examples of such occurrences since local authorities began to outsource various services.

Equally, if profit were the motive, the company or organisation may conclude after a period of time that the margins were insufficient in delivering those services and other avenues offered better prospects, and as a result end the contract. In either case, the local authority, which would have handed over the role of providing those services, would be faced with having to find another partner to deliver them or to bring them back in-house. Meanwhile, the quality of services provided for social care or child protection would be, at best, jeopardised. That is not a situation that any of us would wish to see. It is, therefore, a situation that should be ruled out.

At Second Reading, the Minister relied on the fact that in 2014 the Government had introduced legislation that prevented profit-making where local authorities delegate child protection functions. However, there remains the possibility of profit-making companies setting up their own non-profit subsidiaries to take over the critical and sensitive function of deciding how best to protect vulnerable children There is a serious risk that the likes of Serco and G4S could create these subsidiaries as part of their wider businesses and, in that manner, these companies could indeed profit from the care of vulnerable children and their families, even if only indirectly.

There will be an obvious conflict of interest because some of these companies will also run children’s homes. That will make it difficult to know how funds might flow between the profit-making and non-profit-making arms. That is why the changes outlined in Clause 15 have caused such concern in the sector, and they could undermine public confidence in the services provided to children and young people. It cannot be stressed too much that effective child protection relies on public trust. The public need to be able to trust local child protection teams so that they feel sufficiently confident to report concerns they may have about a child and to have faith that if they raise a concern the service will act in the best interests of that child.

I invite the Minister to provide answers on two aspects of this crucial matter. First, the provisions of the 2014 legislation notwithstanding, can he guarantee that funds will not be transferred between profit and non-profit arms of a company where the latter is delivering services? Secondly, will the purpose and culture of companies or organisations bidding for the right to deliver child protection and social care services be taken into consideration when decisions are made about delivery partners? When an organisation’s primary aim and main business has nothing to do with children, would it be considered a suitable partner for a local authority?

Nothing can be more important than the safeguarding and protection of children, especially those who are at greatest risk or are the most vulnerable. Organisations prominent in the social care and child protection sectors have registered their anxiety over the exemption proposals in the Bill. At Second Reading, I asked the Minister whether the Government had made any assessment of the risk to children in allowing local authorities exemption from some key duties for keeping children safe. I hope he will now be in a position to let me have his response.

[Lord Warner]

Will the Minister clarify the position of social enterprise companies which often have to make a surplus or a profit, depending on where you come from? The Minister and I have been having a flourishing series of exchanges through Written Questions and Answers on what happens when Ofsted regards children’s services as inadequate. The outgoing Prime Minister seems to think that two strikes and you are out is a good idea. I have been asking the Minister for a lot of information about the cost of setting up these trusts, which are quite considerable, and what the Government’s policy on this is. The Government’s policy, most recently exemplified in relation to Birmingham, seems to be that where there are two inadequate reports from Ofsted the local authority could well be required to put its services into what is sometimes called a voluntary trust. On further, closer inspection, a voluntary trust can also be a social enterprise company, and social enterprise companies need to generate surpluses or profits in order to invest in continuing improvements in the services they are running. Since Ofsted has said that one-quarter of children’s social care services are inadequate, will the Minister clarify where this agenda is going? Does it mean that in five or six years’ time we will see a very large number of local authorities’ children’s social care services placed under contract with a number of bodies separate from the local authority, with the local authority still held accountable? Those separate entities, I understand from the Answers I have been receiving, could include all social care services, including child protection. Where are the Government taking this agenda? Have they thought through their position on surpluses or profits from the kinds of organisations that would be under contract with local authorities in which Ofsted determined that social services were inadequate?

[Lord Nash]

My Lords, I spoke to this issue at Second Reading. It is an important question to clarify, and I am very grateful to noble Lords for the chance to return to it so that I can be crystal clear. We are not seeking in this Bill to revisit the established position on profit-making. That is not our intention. There has, of course, been a mixed market in children’s social care for many years, and local authority children’s services regularly work with private and third sector organisations—for example in the provision of foster care and residential care. The Children and Young Persons Act 2008 allowed local authorities to take this relationship further by contracting with these partners for the full discharge of their functions relating to looked-after children and young people.

Noble Lords will remember debating regulations in 2014 to widen the range of functions that a local authority could delegate in this manner to cover other children’s social care functions, notably child protection. The Children and Young Persons Act 2008 (Relevant Care Functions) (England) Regulations 2014 explicitly ruled out profit-making from this wider set of functions. Nothing is more important than the safety and well-being of children, and we are committed to supporting professionals in finding new and more effective approaches to improving outcomes for the vulnerable young people in their care. In recent years that has involved promoting new models of delivery, but we have absolutely no intention of revisiting the position on profit-making settled by Parliament two years ago. I reassure noble Lords that any change to the 2014 regulations would need to be by the affirmative route.

As the noble Lord, Lord Watson, said, we will revisit the innovation clauses next week, but I will say again now that we have no intention of using Clause 15 to allow the existing position to be circumvented. In our conversations with local authorities, there has been no discussion of using Clause 15 to allow profit-making. This is not what we are seeking to do with that clause. I think noble Lords were reassured when we showed them the examples of innovations and they understood a bit more what this was all about. I hope that further examples will help clarify the position.

The noble Lord, Lord Warner, referred to the depressing situation in Birmingham. He slightly lost me on the concept of profit, because obviously organisations such as charities or local authorities are often trying to generate a surplus in order to reinvest. I do not think it is very helpful in this debate to wander into that, but I hope that when we give further examples of how the clause on innovation will be used, noble Lords will be reassured.

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[Lord Warner]

Can I challenge the Minister on this? I would agree that there is a world of difference when it comes to a private company, which is perhaps going to make profits to distribute to its shareholders. That is one set of circumstances, but we then start to move down a series of alternatives. I cited the example of a social enterprise company, which is a body corporate and is entitled to make surpluses. They are not called profits, but it is taking income out of the local authority and building a surplus in an organisation which is not a public body. That must have some effect on the extent to which the resources devoted by the local authority to that social enterprise are available for services in any one given year. How big can those surpluses get before they have an impact on the volume of services that can be delivered? The Minister is trying to brush this away. I am not trying to score points, but the noble Lord, Lord Watson, has raised an important issue. You cannot just say that these are not distributed-profit companies—these companies can build up surpluses which could have an impact on the revenue that is available in any one financial year for the provision of services.

[Lord Nash]

I will reflect further on what the noble Lord has said. What we are trying to do in these situations is make sure that where services have been provided badly—in the case we are talking about, they clearly were—they are provided better by alternative suppliers. I will reflect further on the point he makes and come back to him on it, but in view of the reassurance I have given to noble Lords that we have no intention of revisiting our position on this, I hope the noble Lord will feel able to withdraw his amendment.

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[Lord Storey (LD)]

My Lords, there are moments in Committee when we can listen to people with a lifetime of experience in law and the military, but we ignore at our peril someone with experience of adoption who speaks from the heart and makes such an emotional plea. Certainly our side thinks that this is an important issue.

It is not just an emotional issue, of course; it is also fulfils that awful phrase we use constantly—it would be value for money. This obviously makes sense. I had not appreciated how many low-income families adopt children. We should support them and thereby, we hope, increase the number of children who are adopted.

The last time I heard such an emotional plea was when my noble friend Lady Benjamin made a similar presentation and, I believe, stalked the Minister on a few occasions outside his office. Perhaps the noble Baroness, Lady King, could do the same, but I hope the Minister will take note of this issue.

[Lord Warner]

My Lords, I support this amendment. I will not offer flattery, as the Minister probably knows, but I take him back to the post-legislative scrutiny report of the Select Committee on Adoption Legislation. It is a shame that the noble and learned Baroness, Lady Butler-Sloss, is not in her place, but some of us met a lot of adoptive parents, some of whom were on quite low incomes. They made two points to us very strongly. One was the issue we have already discussed, about the levels of support for adoptive parents, but the second came from people who had been foster parents. They pointed out brutally—but in an amiable sort of way—that the financial disincentive in moving from being a foster parent to an adoptive parent was very high. This seemed to me and other members of that Select Committee pretty bizarre, given that the Government were at that point going hell for leather to promote adoption as the gold standard for permanence.

There is something not quite right here about what we might call the intragovernmental strategy—this applies not just in the Minister’s department—on how we align the financial incentives with the policy objectives. Therefore, the Minister should start to raise some of those issues not just within his own department but across Whitehall.

[The Earl of Listowel]

My Lords, I, too, support the amendment. The noble Baroness speaks so eloquently from her experience and makes a strong case. She takes me back to research that was discussed at the Thomas Coram Research Unit about eight years ago. That unit has carried out comparative research into residential care and foster care in France, Denmark and Germany. It is a long time ago but what stood out for me was that in those continental countries, many more teachers and social workers were recruited into foster care.

Professor Jackson, one of the leading academics on the educational attainment of looked-after children, has raised concerns that many foster carers have themselves had difficult experiences at school. That is another reason why we need to support them very well. The issue of professionalisation comes into this debate. Do we want professional foster carers? My recollection suggests that they are better paid on the continent. That may be why one can recruit from the middle classes there. There is an argument on the other side that we should not pay foster carers a lot of money, as they should be doing this out of love. I have sympathy with that argument as well. However, the very least we can do is to pay them child benefit. I hope that helps the noble Baroness’s argument. I look forward to the Minister’s response, which I am sure will be sympathetic. I hope that we will see some action.

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Moved by

[Lord Warner]

103: Clause 11, page 10, line 39, after “proceedings” insert “, including its powers to secure the submission of material subject to legal or medical privilege”

[Lord Warner]

My Lords, I will speak to Amendments 103 and 104. Amendment 103 seeks clarification from the Minister on the powers of the new child safeguarding practice review panel to require information in relation to its functions. In Clause 14 a,

“person or body to whom a request … is made must comply with the request”,

without, apparently, any exemption.

The report of this House’s Constitution Committee published on 13 June pointed out that:

“This is a broad obligation … and could possibly include information of an incriminatory nature”.

As far as I can see, there is no explicit exemption for material that would ordinarily be the subject of either legal or medical privilege. I can see that a broad exemption of that kind could hamstring the panel in its difficult work. and I will say a bit more about that in relation to a particular case. However, I do not think that we should wait until a case of this kind arises and then find that we are not sure what the rules really are. That is why I support the Constitution Committee’s request for greater clarification.

To illustrate my concerns, let me cite a recent case that could be said to raise this issue if the new review panel were in existence. We have already mentioned today the recent case where Mrs Justice Hogg was criticised by a case review for her decision to take Ellie Butler away from her grandparents and return her to her parents where her father beat her to death 11 months later. My understanding—the Minister may be able to correct me if I have this wrong—is that the judiciary does not consider that the judge can be required to explain her actions to a review panel. In particular, this would make it difficult to consider the system implications of whether a judge should have been able to set aside the judgment of the local authority social workers who had been protecting Ellie and appoint new private social workers to make a different assessment of the protection she required, which sadly resulted in her being returned to her parents with catastrophic results.

This is a systems issue about how the judiciary works. I can see that that could involve incriminatory evidence. Let me reassure the Minister that I am not trying to discuss this case but I am using it to indicate that there may be confusion in the wording regarding the panel’s ability to request information when people may or may not conform for reasons of incrimination. I hope that the Minister can help us with this because we need greater clarity about whether there are any exemptions to a request for information by the panel and the nature of those exemptions.

Amendment 104 is an attempt to introduce time limits into the production of review panel reports. This panel will be considering serious systems matters which are referred to it. It is important that we complete these reviews quickly so that people can learn from mistakes. We do not want very long and drawn-out reviews that hold up learning. We need some kind of time limit here. I am not particularly wedded to the six-month time limit that I put in just to probe the issue, but it would be worth the department and the Minister considering the insertion of time limits for the work of these review panels. I beg to move.

[Lord Nash]

My Lords, I am grateful to the noble Lord, Lord Warner, for Amendment 103. It raises important issues which I welcome the opportunity to address.

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The national panel should have autonomy to use its judgment about what constitutes a reasonable length of time for a review to be produced, although we intend to provide guidance that will aid it in making its decision in this regard. I have already made comments about our thoughts on the time that it is taking currently. I can assure the noble Lord that we will take particular care to reflect on the points raised in this debate. However, as I have explained, there are risks in placing a specific limitation in the Bill, and in view of that I hope that he will feel able not to press his amendment.

[Lord Warner]

My Lords, I am grateful to the Minister for his explanation. I certainly do not wish to pursue Amendment 104 and I am grateful for what he said about giving friendly guidance on timetables. I am still a bit puzzled about the issue of exemption from a request for information. If he is saying that there are no exceptions although there is an expectation that the panel would use its good judgment, I am reasonably comfortable with that. However, I am still fretting a little about the position of the judiciary. I understand the constitutional arguments, but there are some important issues here where, particularly in the Ellie Butler case, if it had been a social worker who had behaved like that, they would have been publicly hanged, drawn and quartered. I would welcome a meeting with the Minister and some of the lawyers about this. I understand that this is a tricky issue, but in the light of that particular case, I would like to get to the root of where the judiciary is in the review process. I do not think that we can just leave it up in the air and say that it is just a constitutional matter.

I accept that this is probably not something for the Bill, but it is worth having a discussion about it. On that basis, I am happy to withdraw the amendment.

Amendment 103 withdrawn.

Children and Social Work Bill [HL]

Lord Warner Excerpts

Monday 4th July 2016 Grand Committee

Moved by

[Lord Warner]

29: Clause 1, page 2, line 4, at end insert—
“( ) In discharging its responsibilities under subsection (1), the responsible local authority must—(a) ensure that all partner bodies responsible for health, housing, police, employment, education and training services are aware of the needs of children and young people for whom they are responsible; and(b) advise the individual children and young people concerned of the availability of services offered by partner bodies which meet their needs and assist them in securing such services.”

[Lord Warner (Non-Afl)]

My Lords, first, I want to put Amendment 29 in context. I see it as part of a package relating to Clause 1. In our previous debate on Clause 1, there was a large measure of agreement that the corporate parenting principles needed to be kept tightly drawn and manageable in length. There was also a sense, however, that some important aspects, such as mental health, needed to be specifically incorporated into those principles. We also discussed at some length the importance of requiring the co-operation of other key partners in supporting the corporate parent in living up to those principles. I am sure that on this latter issue we will come back with amendments on Report to place a clear duty on key partner agencies and services to co-operate with the responsible local authority corporate parent.

I wish to raise a point on this, on which the Minister left me, and possibly other Members of the Committee, rather confused. Let me seek clarification from the Minister on what he said about other agencies co-operating with local authorities on the delivery of services linked to the corporate parenting principles. At one point he suggested that this was covered in Clause 10. As I said then, it is not. Then there was some suggestion that what was meant was Section 10 of the Children Act 1989. With a great deal of help from the Library, to which I give thanks, I have checked: it is not there in the 1989 Act. Then I asked the Library to show me the current version of the 1989 Act, as amended subsequently. It is not in the amended version of Section 10. I am struggling to find it elsewhere in any of the legislation. My request to the Minister, therefore, is that he write to me and other Members of the Committee as soon as possible—certainly well before Report—citing the text of the legislation that requires other agencies, and which of those agencies, to co-operate with the responsible local authority in delivering corporate parenting principles. Without that legislative clarity, I am sure many of us will want to press an appropriate amendment on this issue on Report.

I now return to my Amendment 29, which is linked to this issue. Alongside the corporate parenting principles and the co-operation and involvement of other relevant agencies, a third important element is, I suggest, required to make it all work in practice for the young people concerned. That is an obligation to help those young people get the services they need, which is where Amendment 29 comes in.

The amendment does two things. First, it requires the local authority corporate parent to ensure that all the relevant services are aware of the needs of children and young people in care or leaving care. We know that many of these services, some of which were cited in our previous discussion, are not aware of the special needs of those in care or leaving care. History suggests that we should strengthen the obligation on local authorities to bring home to the other agencies the special needs of those for whom they are corporate parents. Because of the unfortunate timetabling of the Bill, I had little time to prepare the amendment. I know that some services have been omitted from it, but this can easily be rectified.

The second part of the amendment places an obligation on the corporate parent to make sure the children and young people for whom it is responsible know about the services available to help them make their way in the world. It also obliges the corporate parent to help these young people secure those services. I regard this second aspect as very important indeed. Public services can be very complex; they can be very siloed—as was said in our last discussion—and pretty inaccessible. Many of us, as experienced and knowledgeable adults, often struggle to penetrate public sector bureaucracies, so why should we expect these young people to do it without help? It is not good enough to await young people coming forward and asking for help, which they often do not even know about. I recognise that I may not have got the wording quite right and this amendment would need to be aligned with the other amendments to Clause 1 that I have mentioned. However, I hope the Minister will see merit in this amendment and will be willing to make an amendment of this kind to the Bill and possibly discuss it with some of us beforehand. I beg to move.

[The Earl of Listowel (CB)]

My Lords, I rise briefly to support this amendment. I do so because it reminds me of my experience of being acquainted with a young woman who left care some time ago. She did get access to mental health support and saw a therapist over a quite considerable period. She is thriving; she is doing well and supporting young people leaving care. When she spoke to me about her experience, she highlighted how important it was for her to have that access to a counsellor. So if this amendment helps her with that, I would definitely like to support it. We will hear from the Minister about the Children Act duties and I hope that will comfort the noble Lord, Lord Warner.

This woman has a younger brother in care and she is concerned about the access that he is getting to therapy. This is a real issue for many young people in care and care leavers, so I am looking for as much reassurance from the Minister as possible in his response.

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

My Lords, before I respond, I am sure noble Lords will be interested in the documents that my department has published today relating to children in the social care system. The first is a policy paper entitled, Putting Children First: Delivering Our Vision for Excellent Children’s Social Care. It sets out our programme of reform to children’s social care for the next four years. The second is an independent report on children’s residential care by Sir Martin Narey, the former chief executive of Barnardo’s, who is an independent social care adviser to the Department for Education. Sir Martin paints a positive vision for the future role of residential care and we are grateful for his report. I am sure noble Lords will be interested in both publications, which we have today emailed to all noble Lords who were present on the first day in Committee. They will be available in the Library of the House.

I am grateful to the noble Lord, Lord Warner, for this amendment. I fully appreciate the intention behind it. However, what he seeks to achieve is already encompassed within the corporate parenting principles and existing legislation, which I will explain.

The fourth corporate parenting principle is designed to ensure that the local authority, as a whole, acts as a corporate parent, and helps looked-after children and care leavers to gain access to the services and support they need, including those provided by other relevant partners—to avoid the silo mentality that the noble Lord, Lord McNally, referred to, and, as the noble Lord, Lord Watson, said, to ensure that all those who can help are involved. On the point made by the noble Lord, Lord Warner, about Section 10, I apologise for the confusion. I am sorry to have created so much homework for him. Perhaps in future he can send me a short note and I could save him some time. After all, that is what officials are for. As the noble Lord, Lord Watson, said, we are talking about the Children Act 2004, and I will write to the noble Lord with the relevant section and an explanation.

On the point made by the noble Lord, Lord Watson, to make this section and duty more effective, for the first time we are bringing in the principle of corporate parenting. I am happy to discuss that with him further and, to take the point made by the noble Lord, Lord Ramsbotham, to hold a meeting to clarify amendments and ensure, as the noble Baroness, Lady Howarth, says, that we get a sensible Bill without imposing too many new duties that are not really necessary on local authorities.

Local authorities are already under a duty under Section 10 of the Children Act 2004 to make arrangements to promote co-operation between the local authority and each of its relevant partners, including health bodies, schools, local policing bodies, probation boards and youth offending teams, as well as the voluntary and community sector. On the point made by the noble Baroness, Lady Pinnock, I know she would always like to have more money, but this does not impose any more responsibilities on local authorities. The intention of the existing duty is to improve the well-being of children in the local area and the corporate parenting principles are matters that the local authority must consider under the existing legislation. They do not add further functions.

Therefore, it seems inconceivable that under the existing legal framework relevant local agencies would not be aware of the needs of looked-after children and care leavers in the area. If that is the case, the issue must be with how well the local authority is putting its existing responsibilities into practice rather than it being a problem with the law. Therefore, I see no need to add to the seven principles in the way the noble Lord suggests.

The approach used in the existing legislation is broadly similar to the way the duty to co-operate works in the Care Act 2014, which the noble Lord, Lord Warner, referred to during the Committee’s first sitting. The local offer for care leavers will take us further than ever before in helping to ensure that the needs of care leavers are in the minds of services related to health, housing, education, police and employment. In developing their local offer, local authorities will need to talk to those services about what they intend to bring to the table based on what care leavers have told them they need.

For too long care leavers have told us that they do not always have the information they need about the services they need to access and about what they are entitled to. We expect the local offer to set out in one place the full range of relevant services, any additional facilities or entitlements that are on offer, and information about how to access them.

The care leaver covenant, which I have mentioned previously, provides a truly exciting opportunity to build the offer of services and support from a wide range of agencies and individuals. There is no reason why there should be a limit on this. We would like local communities to be as inventive as possible in finding ways of supporting and helping their children in care and care leavers.

I appreciate the very positive intentions behind the amendment of the noble Lord, Lord Warner. However, I do not think it is necessary, given the requirements of the existing legislation and the enhanced focus on children in care and care leavers which the corporate parenting principles and the covenant will bring about. I therefore ask him to withdraw his amendment.

[Lord Warner]

My Lords, I listened very carefully to the Minister. Before responding, perhaps I may say that he offered to write to me. When I did not receive a letter, I went to the Library.

With this approach of simply asking local authorities to find different obligations in different bits of legislation, the Minister is undermining the strengths of Clause 1 and the corporate parenting principles. The right reverend Prelate the Bishop of Durham has given me some interesting information about the Children Act, so technology is giving us instant access to some of these bits of information. However, they do not cover some of the issues that were raised in the debate about the corporate parenting principles; they are narrower in scope where the partners are asked to intervene. We have been having a debate about the full range of services and agencies that need to co-operate with the local authority to enable the corporate parenting principles to be delivered to children. The Minister did not really deal with the issue in the second part of my amendment, which is about the local authority taking the initiative and showing children and young people what services are available.

I looked very carefully at Clause 1(1)(d). It is a pretty general proposition about helping young people, and it does not define who the “relevant partners”—the wording in the legislation—are. If the Minister wants to get the best out of this well-intended set of corporate parenting principles, we have to beef up the Bill in terms of the duty to co-operate placed on the full range of services, and we may need to specify them in the Bill with something along the lines of my Amendment 29. I will certainly come back to this, as I suspect will other Members, on Report. In the meantime—

[The Earl of Listowel]

Before the noble Lord withdraws his amendment, casting back to the Children Act 2004, one agency that was excluded was the Immigration Service. On the duty for all agencies to work together to secure the welfare of children, I am not sure that the Act was successful by excluding that service. In his letter to the noble Lord, Lord Warner, perhaps the Minister can make clear whether that is the case.

[Lord Warner]

I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

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[Lord Watson of Invergowrie]

My Lords, the Bill as drafted places responsibility on the young person to request advice and support. No one in this Room or reading the Bill would be in any doubt that we are talking about vulnerable young people, so the question has to be asked: what support will be offered so that young people know about all their entitlements; and what systems will be in place to help a child make that request, remembering that many of these children will have literacy difficulties? It is one thing for a young person to turn down advice and support that they have been offered. There are two ways of looking at that if it happens. One is that that the individual does not lack a certain amount of confidence, which is a good thing. The other is that they may not have thought the thing through or may lack the requisite amount of common sense, turning away from what is clearly valuable and important information.

Confidence is a big issue for many children who are leaving—or young people who have recently left—care. That lack of confidence is simply because of their life experiences up to that point. They are moving into a world of their own, taking many important steps in a way not experienced by children fortunate enough to live within a family, who have that family as a safety net after they have left home, should things not go entirely to plan. A young person leaving care may not have been informed that they can ask for advice and support. Even if they have been informed and have had that support, it could depend on how that was done. The young person may not always grasp what is available to them.

The question must be asked: why take that risk? Why leave it up to the young person? Much better surely that the duty falls directly on the local authority, not the person himself or herself. We have to have a sense, as we debate issues like this, that we have a duty of care in terms of framing legislation that affords the maximum amount of support to young people. I think Amendments 52 and 53, to which I am speaking at the moment, do that. I mentioned earlier—as did the Minister—that his department has today published the policy paper entitled, Putting Children First: Our Vision for Children’s Social Care. If that means anything at all, I suggest the Minister should live up to it by accepting Amendments 52 and 53 and making sure that the onus is firmly on the local authority to be proactive rather than reactive.

[Lord Warner]

My Lords, I briefly support Amendments 52, 53 and 54. These have echoes of the debate we had on my Amendment 29, in which I argued—with support from other Members of the Committee—that the onus should be on the local authority to take the initiative in offering help. I ask the Minister to think about the circumstances in which many of us are placed as parents, where the Government are trying to get the principles of corporate parenting as close as they can to the responsibilities of parents looking after children who are not part of the responsibility of a local authority. We as parents—I can speak from personal experience—do not watch our children walking over a cliff and wait for them to request us to do something. If we see that they do not understand something or they are going to take some ill-advised action, we do not wait for them to ask us: we intervene. We try to intervene in a sensitive manner but we do try to intervene to give them the information they require to make better decisions. Why are the Government asking a group of people who, on their own acknowledgement, are vulnerable, who often find it difficult to interact with public bureaucracies, to make a well-informed request for help? Indeed, if they are capable of making that well-informed request for help, there is a large chance that they do not need it in the first place. What the Minster has set up looks like a gesture, but the “on request” totally minimises the effectiveness of that gesture. I ask the Minister to reconsider the Government’s position on this, in the light of the moderate way that the noble Lord, Lord Wills, and others have argued for the amendments.

[Baroness Howarth of Breckland]

My Lords, I add one sentence because I clearly heard the Minister say that there would be young people who would not need personal advisers or would not wish to have this sort of help. I understand that absolutely, but all the amendments are suggesting is that we move out “on request” so that the local authority has to take responsibility to ensure that information is given so that a refusal could be made. If we do not ensure that the young people have the knowledge of what is available, they can walk into difficulties.

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[Lord Warner]

The Minister seems to be praying me in aid as somehow opposed to the amendment advocated by the noble Lords, Lord Wills and Lord Watson. I am not; I was supporting what they are saying. I am sorry if I was not clear but I want to put it beyond peradventure to the Minister that I support their amendment to delete “on request”.

[Lord Nash]

I fully understand that; I am sorry if I created some confusion.

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[The Lord Bishop of Durham]

My Lords, I feel that I could already write the Minister’s response by saying that of course these needs are already met in Clause 3(5)(a) or (b), as the subsection refers to meeting “his or her needs”. However, when, year after year, report after report notes that these needs are not dealt with, surely we reach the point where they need to be specified—hence I support the noble Baroness’s amendments. The needs of these young parents have so consistently not been adequately met that we now need to specify them so that they are.

I would also comment that, on occasions, young men may also find becoming a parent a positive turning point. There is a need to support young men who are looked after and become parents who recognise that they have now come to a point of responsibility and they would like to step up to it. They also need support. I invite the Minister’s comments on that.

[Lord Warner]

My Lords, I, too, support Amendments 61A and 71A in particular and draw the Minister’s attention to a Select Committee report produced by your Lordships’ House on post-legislative scrutiny of adoption legislation. Somewhere in the Department for Education archives, there will no doubt be copies of that report and the oral evidence given to the committee. The noble Baroness, Lady Howarth, was on it, and, I think, the noble Baroness, Lady Armstrong.

Among those who gave oral evidence was a remarkable judge, Nicholas Crichton, from one of the London family courts. He was so fed up with a procession of the same young women coming before the family court and having their children taken away. The women would reappear 12, 15 or 18 months later and would continue through their 20s with the same judges in the same court taking away their children and putting them into care. He got so fed up with that that he found some charitable funding to produce some support for the young mothers to whom it was happening because he was trying to stop this escalator of producing more children to be taken into local authority care.

That judge was doing the job that we could argue is the responsibility of the local authority because the great majority of these young women had been in care. We had a bizarre situation where an energetic and innovative judge was trying to do the job of a local authority that was not able to provide these kinds of services to young women who had been in care and who had repeat pregnancies. I would ask the Minister to look at that before he rejects fully these amendments, because there is a lot to be said, in the public interest as well as the interests of these young women, for moving down this path.

[Baroness Hughes of Stretford (Lab)]

My Lords, I apologise for being unavoidably unable to come to the first day of Committee. I should like to add some comments in support of Amendments 61A and 71A. We should see these amendments as being very much about early intervention and prevention. The Bill, welcome though it is, is a little light on early intervention and prevention. The amendments point to situations from the point of view of the babies born to young people who have been in care. Unless there is specific early intervention with a great deal of support provided, we may not be preventing those babies at some point coming into care or being subject to serious difficulties.

I say that for two reasons. We know from the statistics that, generally, babies of young parents—right across the board, not just those who been in care—do not fare as well on any number of developmental indicators, despite the ability of some individual young parents to be outstanding. Those babies suffer a series of stresses from that situation that impair their development, in many instances irrevocably. The vulnerabilities suffered by a young parent who has been in care can only add further stress and difficulty to that situation. It is really important from the point of view of early intervention and prevention for children born to young people who have been in care that there is a specific focus that points the statutory services to make sure that they intervene early and prevent adverse consequences further down the line to another generation of children. I hope the Minister will take these amendments seriously.

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Moved by

[Lord Warner]

73: Clause 3, page 5, line 16, at end insert—
“( ) In making available personal advisers under this Act, the Secretary of State must make regulations to provide—(a) performance standards and training for personal advisers;(b) arrangements for vetting as to their suitability before taking up posts; and(c) a publicly available register of approved personal advisers.”

[Lord Warner]

My Lords, this is a probing amendment on an issue of great concern to me: safeguarding young people from predatory adults. Clause 3 is the first place in the Bill where I could find the term “personal advisers”, so I have grafted the amendment on to the clause to seek support in principle for the idea that personal adviser is the kind of job that could conceivably attract people with predatory intentions towards vulnerable young people.

Many of those young people over the age of 21 may themselves, despite their chronological age, be rather immature and vulnerable, so reaching the magic age of 21 does not necessarily produce a lack of vulnerability. That is why I drafted the amendment, which requires the Secretary of State to make regulations on three matters relating to personal advisers, irrespective of age. The Minister has to some extent tried to deal with that in his previous answers about a review and the rather mysterious deep dives that seem to be taking place in the Department for Education. However, I am not sure that we should miss this opportunity in legislation to put safeguards relating to personal advisers in the Bill: first, a provision for performance standards and training for personal advisers to be set out in regulations; secondly, arrangements for vetting them as to suitability before they take up posts; and, thirdly, a publicly available register of approved personal advisers. Those are the minimum safeguards that are required before we proceed with the introduction on a national basis of personal advisers, whatever reviews the DfE may be carrying out.

I shall say a few words about my personal experience, which causes me to feel so strongly about this amendment. First, some of the experiences I had as a director of social services brought home to me the vulnerability of young people with low self-esteem, a lack of love in their lives and bad experiences at the hands of adults. If a person in a position of trust abuses that trust, often after a period of grooming, many young care leavers are very vulnerable to damaging overtures. I have a few examples that I have had to deal with—and I am sure that the noble Baroness, Lady Howarth, has had not dissimilar examples. A foster father sexually abused a teenage girl; a Catholic priest abused young people in an adoption agency; a care home manager was caught in a teenaged girl’s bed in his own care home, in the middle of the night; and care home staff practised so-called regression therapy by encouraging children to sit on their laps. These are just a few of the people who find themselves able to get near vulnerable young people. Incidentally, the care home manager caught in flagrante took me to an employment tribunal for wrongful dismissal. These are real-world examples of what corporate parents may have to deal with.

It was that experience that led to Virginia Bottomley, the then Health Secretary, appointing me to chair an inquiry in the early 1990s after a series of scandals into how we recruited, vetted and trained staff working in children’s homes. Our report, Choosing with Care, led to some strengthening of the safeguards against predatory adults. But with the passage of time, we are in danger of assuming that some of those problems have been dealt with. As the Jimmy Savile and other examples have shown, we have to be ever vigilant. If we introduce a new group of people with easy access to vulnerable young people, we need to do all we can to safeguard those young people. The predators will always be around, and we are failing young people if we do not do our utmost to put in place protective procedures.

That was brought home to me very graphically when, a couple of months ago, I saw a play by Phil Davies called “Firebird”, at the Trafalgar Studios—I am not doing a commercial because it is no longer running there. This shows how a predator, seemingly someone who works with young people, grooms a lonely, vulnerable, young person into prostitution. I am sure that the wording of my hastily produced amendment could be improved, but I hope that the Minister will accept in principle that, if we are going for a national system of personal advisers, we should put in the Bill some safeguards for young people against potentially predatory personal advisers.

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[Lord Nash]

I am very grateful to the noble Lord, Lord Warner, for his amendment and the points that he, the noble Baroness, Lady Howarth, the noble Lord, Lord Storey, the right reverend Prelate the Bishop of Durham, the noble Earl, Lord Listowel, the noble Lord, Lord Wills, made about the importance of safeguarding young people from predatory adults and the qualifications, training and management of personal advisers. These are of crucial and, in the case of safeguarding, paramount importance, and I will ensure that these points are covered in our review of personal advisers, to which I have already referred in some detail. This will inform what we say on Report, although I recognise the points made by the noble Earl, Lord Listowel, and the noble Lord, Lord Wills, about flexibility and stability and will look at the worrying delays to which the noble Baroness, Lady Howarth, referred in relation to vetting.

I hope that the noble Lord will accept that I do not want to prejudge the outcome of our review by accepting his amendment now, and I hope that he will therefore consent to withdraw it, but I assure him that I recognise the importance of the points he makes.

[Lord Warner]

My Lords, I am grateful to the Minister and everyone else who has spoken in this debate. I could really identify with the point made by the noble Lord, Lord Wills. I recognise how complex this issue is, certainly do not want to go into bat for the particular wording of the amendment and I accept that the Minister needs to carry out a review.

However, given what we have learned about predatory adults and vulnerable people over a long period, I ask the Minister and his department to reflect whether we should signal the issue of vetting in some brief way in the Bill. The noble Lord, Lord Storey, made the important point that there are two sides to this: the vulnerability of young person but also that of the personal adviser if they are isolated without adequate supervision. This is a difficult area and it is not easy to find solutions, but it behoves all public bodies and Governments, particularly with the Goddard inquiry going on, to recognise upfront that this is a real 21st-century issue which has to be wrestled with. Signalling in the Bill not the detail but a willingness to grapple with the issue is very important. In the meantime, I beg leave to withdraw the amendment.

Amendment 73 withdrawn.

Children and Social Work Bill [HL]

Lord Warner Excerpts

Wednesday 29th June 2016 Grand Committee

[Baroness Walmsley (LD)]

My Lords, I have Amendment 18 in this group, which adds wording about protecting safety and providing stability in home lives, relationships and education or work. It is very similar to the wording in proposed new subsection (1)(f) in Amendment 1, moved by the noble Baroness, Lady Howe.

Coincidentally, I also submitted the same amendments as the noble Lord, Lord Ramsbotham, to remove “have regard to the need” and the other amendments he referred to that follow from that—so of course I have added my name to those.

I wholeheartedly agree with the noble Lord, Lord Bichard—who would have been able to speak for himself if we had met on Monday as originally planned—that the whole point of setting out the corporate parenting principles explicitly is to make the responsibility explicit. That is most likely to be achieved if the drafting is as clear as possible. The inclusion of “have regard to” detracts from that clarity. It also changes the nature of the duty: it is no longer to encourage people to do something but to “have regard to” encouraging people to do something. How pathetically weak and feeble. I could have regard to something but decide to do nothing as a consequence of my regard. That will not do.

We need a set of corporate parenting principles that protect all those things that contribute to the health, well-being and future opportunity of children in care and those leaving care. That is why my Amendment 18 adds the principle of protecting their safety and providing stability in their home lives, relationships and education or work.

Children in care who are abused will be damaged for ever if we are not very careful. That is why we need to keep them safe. Children who are moved around from one foster placement to another and have no stability feel insecure and cannot keep up those relationships that help them to know who they are and their place in the world. The people they value and who value them are so important to their sense of self-worth and their attainment in life.

The Education Select Committee found that health services are turning away children in care who do not meet diagnostic thresholds. Access to services is prohibited when children do not have a permanent address. They experience moves in care, moves from one foster parent to another—or, even worse, moves out of their area. Problems include registering with a GP and poor communication between local authorities and clinical commissioning groups.

Designated health professionals report that they have not been asked to contribute to the strategic planning of services for these children, and some others felt that there were no robust routes for contributing to commissioning processes and decision-making.

Stability at home, school and in relationships is vital for these children and should be included in the principles. It is very important that the legislation is clear, so that those affected are in no doubt what their responsibilities are. The only people who benefit from confused or over-elaborate drafting are the lawyers. As drafted, Clause 1 is confused, and we must try to clarify it during the course of our deliberations.

Many noble Lords are seeking to add important additional principles, including my noble friends Lady Tyler of Enfield and Lady Bakewell of Hardington Mandeville. Their amendments on mental health and poverty alleviation will come later, and I support them wholeheartedly. But the point I am making is that these amendments, and others, would be to no avail if the principles just had to be regarded and not strictly adhered to. So I say to the Government: if you really believe in these principles as drafted—and, I hope, as amended by several important additions from me and others—please accept that the words “have regard to the need” must go.

[Lord Warner (Non-Afl)]

My Lords, I am probably one of only three people in this room who has actually been a corporate parent. Having worked in a local authority, I know that if you put wording in a Bill that says “have regard to”, the chief officer, who may want to do the right and proper thing by these children, will be put in a spot of bother. If a local authority and its lawyers see “have regard to”, they will have a conversation with the chief officer which will start: “Do you really have to do this, if the financial situation is tough and bad?”.

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[Baroness Lister of Burtersett]

My Lords, I support Amendments 3, 31A and 36, which, as the noble Earl, Lord Listowel, said, seek to extend corporate parenting principles to central government departments in recognition of the role that they play in the lives of looked-after children and care leavers. I am grateful to the Children’s Society for its briefing on this.

Like other noble Lords, I welcome the Government’s commitment to placing corporate parenting principles into law for the first time, and see this as an important step in making sure that children’s best interests—a key principle—life chances and future prospects are put at the core of decision-making processes. Statistics for looked-after children highlight a situation requiring leadership from central government to improve life chances through accepting their responsibility as corporate parent. The Prime Minister has emphasised this a lot recently. I think that we were going to have a life chances strategy announced tomorrow, but that has been rather derailed now. For instance, we know that at least 38% of care leavers aged 19 to 21 are not in education, employment or training. Research by the Centre for Social Justice showed that 59% of care leavers found coping with the mental health problems referred to by the noble Baroness, Lady Tyler, very or quite difficult. The same survey by the Centre for Social Justice found that 57% of care leavers found managing money and avoiding debt difficult.

This cocktail of poor educational attainment mixed with mental health difficulties, low-paid work and difficulty with managing money should alarm us all. More importantly, it should compel us to do better for these young people by ensuring that all levels of government which make decisions about their lives should be required to consider their responsibilities as corporate parents.

Welcome steps were made in the 2013 cross-departmental Care Leavers Strategy, which for the first time brought together government departments to consider the impact of their policies on care leavers—so in a sense the principle has been established. Extending corporate parenting principles to central government is, I would suggest, the next logical step. I hope that the Minister will agree that there is no argument against this in principle. We might question the practical ways of doing it, but this is an opportunity which we must seize for central government to do its bit for care leavers by adopting the very corporate parenting principles that it is now rightly laying down for local government in recognition of the pivotal role that central government policies play in the everyday lives of care leavers.

[Lord Warner]

My Lords, I very much support the spirit of this group of amendments, but not necessarily the wording. I also very much agree with the point made by the noble and learned Lord, Lord Mackay, about being very clear and crisp about the responsibilities and principles that we require the corporate parent—the local authority—to adhere to. That is absolutely right. I say to the Minister in a spirit of helpfulness that in other legislation such as the Care Act 2014 we have joined other agencies and given them a duty to co-operate with a primary agency with regard to that primary agency’s responsibility to discharge a set of obligations placed in legislation. We had many debates similar to this one as the then Care Bill went through Parliament. The Bill had to deal with the issue of the primary responsibility on the local authority in relation to adult social care, but, at the same time, required other people to help discharge those obligations.

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[Lord Nash]

The noble Lord makes a good point: we should look at it and see what lessons can be learned, as Scotland is at least a year ahead of us on this.

To focus on England, we absolutely acknowledge that there is a role for central government—but it is a different role. Central government departments are not the corporate parents of the children taken into care or accommodated by local authorities. The role of government is to set the broader policy framework.

That is not to say that government departments across Whitehall do not recognise that looked-after children and care leavers need more support and assistance. That is why, if we take health services as an example, the NHS Constitution for England makes clear the responsibilities of clinical commissioning groups and NHS England to looked-after children and, by extension, care leavers. It is also why looked-after children are mentioned specifically in the mandate to NHS England.

The noble Baroness, Lady Tyler, made a point about CAMHS not being willing to treat children not in a stable placement. Child and adolescent mental health services should treat children according to level of need, irrespective of the stability of their placements. The expert group set up to look at care pathways for looked-after children will specifically address this point, with a view to ensuring that access to treatment is according to clinical need and in line with existing statutory guidance.

There are other examples where central government in England has championed looked-after children and care leavers. That is why they now attract pupil premium at a rate of £1,900 per pupil—higher than for other eligible pupils. That is why they also get priority in school admission arrangements.

In 2013, the first cross-government Care Leaver Strategy was published. It recognised the need to work coherently across government to address the needs of care leavers in the round. As a result, a number of changes were made, including measures to better identify care leavers so that they got tailored support—for instance, through the introduction of a “marker” by Jobcentre Plus so that care leavers could be identified and offered additional help. This work continues. We are now working on a refreshed strategy, and have been working closely with seven other government departments in England. The development of the strategy, which will be published shortly, has the backing of the Social Justice Cabinet Committee.

Amendments 36 and 37 seek to require government departments to publish information about services that will help care leavers prepare for adulthood and independent living. As with Clause 1, Clause 2 is about local authority services. The local offer is a manifestation of what it means for each local authority to be a good corporate parent. I agree that central government has responsibilities to looked-after children and care leavers alongside local government. The work we have been doing with each government department at both ministerial level and involving senior officials meeting regularly to discuss what more can be done to support care leavers at the level of national policy represents a significant step forward in increasing the understanding of and commitment to care leavers across Whitehall. Guidance of course is incredibly useful and we shall be consulting fully on what the guidance on corporate parenting should include. But although—quite rightly—central government can and is setting the framework for good corporate parenting, the biggest impact on the lives of looked-after children and care leavers will be made at local level.

We have not extended the principles beyond local authorities in England because it is their duty to both looked-after children and care leavers—and I am grateful to the noble Baroness, Lady Scott of Bybrook, for her remarks in this regard. These principles will guide local authorities in how they should exercise their existing functions and duties in relation to these vulnerable children and young people. As I have said, through these high-level principles we want to embed a corporate parenting culture across the whole local authority.

I recognise that looked-after children and care leavers need more support and assistance from a variety of public bodies. They will need to be able to make best use of services provided by other bodies, including clinical commissioning groups, NHS England, schools, housing and sometimes youth offending teams. That is why the fourth principle sets out a requirement to have regard to the need to help looked-after children and care leavers gain access to and make best use of services provided by the local authority and its relevant partners.

Of course, one could seek to apply these principles to a whole range of other public bodies. However, I believe that in doing so we would risk creating an overly bureaucratic tick-box approach that would do little to improve the life chances of looked-after children and care leavers. Instead, we need to embed a cultural shift. As I have said, the duty to co-operate with the relevant parties is already on the statute book in Section 10 of the Children Act 2004, where there is a duty to co-operate to improve the well-being of children and care leavers.

I emphasise that though we do not believe that extending the principles in law to other bodies is the way forward, we recognise that there is more to do to raise the awareness of these young people. Indeed, the consultation which local authorities will undertake with their local practitioners on developing the local offer being introduced under Clause 2 will ensure that access to NHS services and housing is inevitably brought into the process without the need for further prescription. To reinforce this, the department will also set out in statutory guidance how the corporate parenting principles should be applied in practice. Partnership working and commitment to care leavers is at the heart of the sea change that is needed to transform their lives.

Last month the Prime Minister signalled the Government’s intention to create a care-leaver covenant. This will provide a means through which public, private and voluntary sector organisations will be able to demonstrate how they support these young people and improve their lives. I would expect partners such as police and health bodies to consider how they can contribute to supporting care leavers. I also hope that many organisations in the private and voluntary sectors will commit to supporting young people leaving care through the care-leaver covenant.

I hope that noble Lords are reassured and that the noble Lord can be persuaded to withdraw his amendment.

[Lord Warner]

Can the Minister explain what part of Section 10 actually requires other agencies to co-operate? It looks to me as though Section 10 is all about combined authority functions, which is not the same as the point being made in this debate about other agencies. Can he also respond to the point that both the noble and learned Lord, Lord Mackay, and I made about looking at the Care Act to see the way in which the coalition Government took account of the need to require agencies to co-operate with the primary responsibility given to local authorities to deliver the health and well-being of people covered by the Act? We are asking the Minister to consider that and I did not hear anything in his speech that suggested he would take away the proposition that he should look at requiring a duty from these other agencies to co-operate with the local authority as the corporate parent.

[Lord Nash]

My Lords, I am advised that the relevant clause does actually promote co-operation between these agencies, but it might be better if I write to the noble Lord and we will publish the letter.

[Lord Warner]

I am sorry but I want to pursue this. The clause is clearly—

[The Earl of Listowel]

I think that the Minister was referring to Section 10 of the Children Act 1989, not to a clause in this Bill. I hope that that is helpful.

[Lord Warner]

That certainly was not what he said.

[Lord Ramsbotham]

I am grateful to all noble Lords who have spoken. Many issues have come up during the course of the debate, not least those raised by the noble Lord, Lord Warner. I suspect that this subject will reoccur on Report and I hope very much that, unlike the period in the lead-up to Committee, it will be possible to have meetings with the Minister and his officials to discuss it. I suspect that at least the Local Government Association and local authorities will wish to be consulted on what actually appears in the Bill. So in the hope that that may happen—

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[The Earl of Listowel]

My Lords, the report In Care, Out of Trouble: How the life chances of children in care can be transformed by protecting them from unnecessary involvement in the criminal justice system, an independent review chaired by my noble friend Lord Laming and sponsored by the Prison Reform Trust, was published about a month ago. Can the Minister tell us how the report has been received and when it is likely that a response to the recommendations made in it will be forthcoming?

I too share the concerns about the status of young people in the immigration system as they leave care. I would like to emphasise the point that has been made on all sides, most recently by the noble Baroness, Lady Lister, that these young people need advice early on when they enter care about their immigration status so that they can make early applications in order that when they leave care, it has been sorted out. Often they do not get that support and everything is up in the air for them. This is such an important point.

[Lord Warner]

My Lords, I too support Amendments 14 and 28A, but I want to speak mainly in support of Amendment 9 tabled by the noble Lord, Lord Ramsbotham. I do so from the background of having been the architect of youth offending teams and as a former chairman of the Youth Justice Board. One of the most depressing things about the report of the noble Lord, Lord Laming, is that we continue to find that the same number of children, if not more, who have been looked after and have left care are in the criminal justice system. My responsibilities as chairman of the Youth Justice Board related to the under-18s. If noble Lords go to Feltham, as I did recently, or look at young offender institutions for 18 to 21 year-olds, they will still see very disproportionately represented young people who have been in care. It is worth giving this special consideration, without distorting and overcomplicating Clause 1 too much; the point made by the noble Lord, Lord Ramsbotham, in Amendment 9.

These children are a special case. Many of us have tried to ensure that they get a better deal so that they do not go into the criminal justice system. Progress has been made among the under-18s in diverting them away from it, but there is still a long way to go. That is particularly the case among young people who have been in care and then are taken into custody. It is the case that when they leave custody, a depressing number of these young people quickly get on to the escalator of reoffending and they are back where they started. Many of the sentences are short. I should say that I am not advocating longer sentences for people in these circumstances, but they are usually not long enough to enable those running the custodial institution to change the behaviour of these young people and provide them with support. Typically, when they come out of custody, whether they are under 18 years of age or aged 18 to 21, for many there is no one in their lives to support them, they have accommodation problems and they do not have any employment. They then go back into the kind of environment which led them to get into the criminal justice system in the first place. Many of them offend outside the area where they were in care, so we have some problems about whether those local authorities always pick up the background of these children.

It is very difficult in today’s world for a youth offending team working with a young offender in one area to get the host local authority, if I might put it that way, to take responsibility for that young person who had been in their care. We have to look very seriously at Amendment 9 from the noble Lord, Lord Ramsbotham. It gives focus to the importance of trying to do our best to stop these young people who have been in care, or who have left care, going through the revolving door of the criminal justice system—particularly those who end up in custody and then fail again when they leave custody.

[Lord Mackay of Clashfern]

My Lords, first, I very much support the amendments that wish to provide legal assistance to children who are in need. It is extremely important that they should have such help. I suggest for consideration setting up an advice centre because the problems that unaccompanied minors who come from abroad face include the intricate law in relation to immigration. If you go to a high street solicitor, it is difficult to get the kind of advice that you might wish for in that situation. It would be important to have a small team of specialists set up by the Government, or by anyone whom the Government could persuade to set it up, which would be available to provide that kind of help to children in that situation. That would be children who are in care or unaccompanied minors who come into our system otherwise than by the ordinary ways of care. It may be a good idea to bolster this type of amendment with a suggestion as to how it might be carried out efficiently and at reasonable cost.

My second point is in relation to Amendment 9. I understand the problem broadly in terms of the report of the noble Lord, Lord Laming, and other reports—for example, the chief officers’ consideration of it. To ask people to do this is a great aim, in a sense, but I feel that if we are to do this we should offer them some assistance on how they go about it. Is the main way of approaching it to try to prevent the children in care committing criminal offences, small or large, or is it saying that if the children commit small offences we should persuade the police to do nothing about it? In other words, we should not commit these people to the organisation that deals with complaints generally. As has been said, ordinary children may find themselves in a disciplinary situation in their own families which does not involve the police and it may be that something of that kind is required. I am not at all certain how this problem can be dealt with but I am very much aware of it, and of the point of view that it should be dealt with. I would like to give more help to the people who we are asking to deal with it in how they go about it.

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[Lord Warner]

My Lords, I support Amendments 10, 16, 34 and 87 and the separate issue that is Amendment 33. I am not going to rehearse all the arguments about why looked-after children and children taken into care are a very special case in relation to access to mental health services, but they are. The noble Baroness, Lady Tyler, made the point about the inadequate assessment of the state of their mental health and the trauma they have suffered. It is pretty intolerable. Some of us who are veterans of the discussions on the Health and Social Care Act 2012 spent a very long time trying to persuade the Government to deal with parity of esteem between physical and mental health in that piece of legislation. Finally, the Government gave way and it is in there. It is part of the way the mandate has been changed for NHS England.

That is fine in terms of that piece of legislation but there needs to be some follow-through in this legislation as well. That is why Amendments 34 and 87 are so important because not only do they deliver parity of esteem in terms of physical and mental health, they lead to some practical ways of making that happen. We all know that access to CAMHS is extremely variable around the country. There is no equivalent access in different parts of the country. That is why we should start to really push the boat out on this issue in this legislation. I hope the Government will recognise the seriousness of the issue of proper mental health support in the Bill for these children who have very special needs. They have gone through particular sets of trauma in getting to the point where the state has had to intervene and bring them into the care system.

I wish Amendment 33 from the noble and learned Lord, Lord Mackay, had been on the statute book when I was a director of social services. I would like to have been put in the position of having to address that issue. I became the Children’s Commissioner in Birmingham in 2014-15. There is a deeply depressing familiarity for me when talking to children in private meetings about their experiences in care. They would readily tell you how many social workers they had had, not just in their time in care but in the last 12 months. There is massive turnover for a group of people who have already lost a lot of confidence in the adult world. These are young people who have often had very bad experiences at the hands of adults. They have often had a transition of adults through their lives with no consistency.

The noble and learned Lord has raised an important issue and I wish we had had more time as I would have added my name to his amendment. The Government should take this amendment very seriously. It will of course be difficult always to get that right in the present circumstances, but at least it should be clear in law that that is what the corporate parents should be trying to do as soon as the child comes into the care of the local authority.

[Baroness Benjamin]

My Lords, I visited my GP last week and she expressed her concerns about the number of care leavers coming to her surgery with mental health issues—anxiety, depression, self-harming, suicidal emotions and erratic behaviour. She said: “Floella, if only we could do something about this when the child is entering care. If only we could identify that they are suffering from mental problems it would save the NHS resources and save them suffering and long-term unhappiness.” That is what many Peers have said this evening, while charities such as the NSPCC have said it for a long time. I, like others, strongly believe that we need to adequately identify the issue and that children should receive assessment for their mental and emotional well-being by professionals with specialist training in the mental health of looked-after children. This is necessary because the children are suffering long-term. We spoke earlier about corporate parenting. I believe that the principles should include the responsibility to ensure that children are offered the support they need to recover from psychological harm caused prior to their entry to the care system. That should be paramount when we have to look after those children.

There must be provisions made to guarantee that the children in care will never be denied access to, or disadvantaged when trying to access, mental health services. They are finding that this is a problem. They must never be told that they cannot get professional help because they are not in a stable placement, or disadvantaged because they have moved out of an authority placement. We know that a high percentage of children in care end up in prison or are homeless, and that many suffer from mental problems while in prison. During my prison visits, I often speak to young people who say. “If only things had been different for me when I was a child”—a phrase repeated over and over again. Children who have been abused or neglected could face serious long-term mental problems throughout adulthood because of the lack of support, so it is essential that we are able to deal with difficulties early and offer the right support to children.

Children need that support but the NSPCC has found that there are not enough therapeutic services for those who have been abused or neglected. This has to stop. There is cause for concern because more and more children are reporting sexual abuse, which is occurring every hour of the day, and because we have almost 70,000 children living in care in England. This has to stop and we have to help these children. We must not let them down. That is why I am supporting and have put my name to Amendment 87.