Family Justice (Transparency, Accountability and Cost of Living) Bill

Nadine Dorries Excerpts

Friday 26th October 2012 Commons Chamber

[John Hemming]

This is about justice for families in the wider sense. Our society should be based on making life better for families in this country, and making people’s lives easier through better judicial proceedings, fewer cover-ups and cheaper energy bills is all about justice for families.

Over the summer, I worked mainly outside Parliament to consult bodies interested in these matters. As a result of those consultations, I aimed to compromise and ensure that, in a very contentious area, my Bill had support from a broad swathe of opinion. I managed to do that; the only collective group set in opposition is the Association of Directors of Children’s Services.

[Nadine Dorries (Mid Bedfordshire) (Con)]

May I back the hon. Gentleman on that point? Mothers across my constituency have asked me specifically to support this Bill because they feel that it contains the measures they need to help them through the court system.

[John Hemming]

I thank the hon. Lady for that support. Many people wish to see the Bill proceed, and the Association of Directors of Children’s Services is the only collective body I know of that is opposed to it.

The group 4Children said that it supports many of the aims of the Bill, in particular the emphasis on the role of the extended family in supporting vulnerable children and children in care. It stated:

“Our family commission in 2010 called for all families facing family court proceedings to be offered a family group conference, so we warmly welcome in particular the provisions in part 1 of the Bill.”

The British Association of Social Workers said that, although it will not support the Bill formally, most elements relate to good practice, and we have made changes following consultation with it. I have also spoken with the Government who, even if the House gives its assent to Second Reading today, remain in control of the Bill’s progression. For a Bill Committee to meet will require a motion tabled by the Government.

--- Later in debate ---

[Nadine Dorries]

Does the hon. Gentleman agree that large organisations, as we have seen recently with the BBC and various parts of the NHS, breed a culture almost of intimidation? We have seen the problems that whistleblowers have, and we have seen it in other areas too. Big organisations, particularly those belonging to the state and Government, seem to breed this culture of intimidation to prevent people from protesting.

[John Hemming]

That is very true. If Parliament wishes its laws to be enforced, it needs to protect people who want them to be implemented, but at the moment we do not so. We have seen it with the Savile saga, but that is not unique. Let us remember all the bullying and threatening that went on to cover up Hillsborough. That is another example of a cover-up that succeeded in part through intimidating people.

[John Hemming]

That is the problem. Unless we allow people to complain and we protect people’s right to complain, the rule of law cannot apply, because we do not know that somebody has infringed the law. This applies in all areas.

If the Government decide to knock out all but one of the clauses, leaving only protecting the right to complain, that will be progress. There are many clauses, but they do not all have to go through. I would like a lot of them to progress, but, at the end of the day, the Government are in control. There is no doubt about that. If we keep only one, however, let it be the one about the right to complain, protecting whistleblowers, preventing cover-ups and protecting children who complain. These children were not only ignored but punished—their punishment was only the withdrawal of privileges, but still that cannot be right. Parliament cannot tolerate such a thing.

[Nadine Dorries]

It is true that children who complain must be protected, but we are not only talking about the removal of privileges from children. Adults can lose their jobs, livelihoods, careers and homes, if they decide to do the right thing, take the higher moral ground and complain. Their punishment prevents others from coming forward, and that is how the culture grows and the cover-ups happen.

[John Hemming]

The hon. Lady is exactly right, and we almost endorse that by our laxness in protecting people with valid grievances.

--- Later in debate ---

[John Hemming]

I accept the hon. Gentleman’s point that on Report it might be quite challenging, because people might wish to stop the whole Bill in order to stop certain aspects of it, but that is a decision for later. As it stands, the Bill contains many useful clauses, all of which would achieve positive things for families and people in this country. I would like them all to progress on to the statute book, but I am realistic and will have to work with the Government. I will also need the House’s support on Report, because without that the Bill will not get on to the statute book. I have to be realistic about that. The clauses are in the Bill, however, because they are good clauses for families in this country.

I was talking about Hillsborough. The siren voices of Whitehall should not be listened to. Action is needed now. The Bill cannot progress after Second Reading without the Government’s support, so they should not fear its progressing beyond today. I am happy to work with them and to compromise in order to improve the lives of children and families, but we must start now.

The Bill has three parts, which at first sight might appear different but which all have an underlying philosophy centred on the word “justice”. The general theme and overall purpose of the Bill is to help ensure justice in three areas: in the family justice system, which includes the Court of Protection; in related areas where there are injustices that need to be dealt with; and for families who suffer the injustice of cold homes and fuel poverty.

Part 1 concerns the family justice system and the work of children’s services authorities and related matters. The interim report of the family justice panel found in 2011 that the system was not working and that it had identified much the same problems as the previous seven reviews of family justice carried out since 1989. The House of Commons Justice Committee reported on 14 July last year and spoke of its doubt about the current system’s ability to cope with future challenges. Both the Munro review of child protection published last May and the final report of the family justice review published last November highlighted the need for urgent reform. The latter said:

“We found general agreement with our diagnosis: a system that is not a system”.

A clause-by-clause explanation of the Bill will illustrate some of the improvements to the system that it seeks to make.

Clause 1 deals with the point at which most families will commence contact with the family justice system or their local children’s services authority. This will currently be at a case conference or, more accurately, a child protection conference—a meeting of professionals who decide what steps the local authority should take in respect of a child who might be deemed at risk. However, children, if old enough, and their families might be excluded from the meeting or might not see the reports being discussed, so decisions may be taken without their input. This means that the meeting will not have as much information as possible when making difficult decisions, such as to take children into care.

Another practice, called family group conferencing, is now developing. This approach involves the children, where old enough, the families and, where appropriate, the wider families, and it has widespread support in the social work and child care fields.

In evidence to the family justice review, the British Association of Social Workers said:

“Some aspects of the Public Law Outline have also helped to promote more positive engagement with families (i.e. there has been increased use of Family Group Conferences which can be very effective in empowering of families if used appropriately and practitioners have received the necessary training to equip them to undertake this work). These reach out to engage in a way that says to families, ‘you have the knowledge and expertise, we want to work with you to make things better for you and your family’. There should be increased roll-out of this approach. It requires very little adjustment in terms of skills, but it does require a different attitude/values set.”

Barnardo’s told the House of Commons Justice Committee inquiry into the operation of family courts that a

“better option”

is

“a requirement to have family group conferencing…our experience of one”

such service

“was that for 27 families for whom care proceedings were considered none of those children went into care.”

Page 93 of the Justice Committee’s report concluded:

“We were very impressed by the account of Family Group Conferences in Liverpool. It is a matter of regret that a service with an apparent 100% success rate is being cut back.”

Subsections (1) to (3) of clause 1, while not abolishing child protection conferences, as they may be deemed necessary at times, establishes as the norm the wholly different approach of a family group conference by requiring that families are offered such a facility. A family group conference is defined as

“a family-led decision-making meeting, convened by an independent co-ordinator…in which a plan for the child is made by the family, involving the child (if old enough), the parents, and potentially extended family members and friends which addresses any concerns about the child’s future safety and welfare”.

Subsection (2) then gives the family six weeks to come up with a family plan for the child, and this is submitted to the children’s services authority, which has to approve or disapprove it. In the latter situation, under subsection (3), the children’s services authority is required to “try to reach agreement” with the family on a revised plan. If this is not possible, the view of the children’s services authority will prevail, but pursuant to subsection (4) the child or the family can appeal that decision to the scrutiny committee of the local authority. This is in line with the view of the former children’s Minister, the hon. Member for East Worthing and Shoreham (Tim Loughton), who told the Education Select Committee on 12 June this year:

“This is particularly important when it comes to adoption proceedings and other forms of permanence, where…the consequences are far reaching. I am…conscious…as to what further safeguards we might…institute…a sort of appeals mechanism.”

Subsection (6) provides for emergencies by stating that the children’s services authority is not under an obligation to offer a family group conference

“in the event of emergency action being required to protect a child”.

Subsection (5) deals with the provision of information to children and families. Since 1999, Government practice guidelines for children’s authorities, entitled “Working Together”, state that

“the local authority has a responsibility to make sure children and adults have all the information they require to help them understand the processes that are followed when there are concerns about a child’s welfare.”

In practice, this may not be happening. According to page 5 of the Norgrove family justice review of November 2011:

“Children and adults are often confused about what is happening to them. The need to address this will rise.”

Page 4 of the Adoption UK response to the family justice review states:

“From the perspective of adopted families Adoption UK often hears of limited information and explanation being provided to families about what will be happening and why.”

Paragraph 2.26 of the Munro review of child protection states that families

“are confused…and they don’t understand the processes”.

Gingerbread’s evidence to the Justice Committee, reported under question 78, on 25 January 2011 was:

“We surveyed about 453 single parents…over half found the system dreadful and poor; about 73% find it difficult to navigate.”

The House of Commons Justice Committee investigated in some detail the need for guidance to be given, especially because of the increasing number of litigants in person. It reported the unanimous view of judges that this slowed things down, thus causing severe wastage of court time, and so concluded:

“This will require guidance to be developed to accommodate the challenges posed by a larger number of litigants in person.”

Subsection (5) of clause 1 deals with this matter by requiring:

“Any child or parents or other relatives of the child attending a Family Group Conference must be given in advance a publication explaining the childcare system and how it may affect them in the future and referred to an independent advice and advocacy organisation.”

We recognise that in these difficult times the cost implications are important, and in this regard, I draw attention to the words of the BASW quoted earlier:

“It requires very little adjustment in terms of skills, but it does require a different attitude/values set.’

As regards the staffing impact, the results of the family group conference approach, quoted by Barnardo’s, are also relevant: no children were taken into care, so less spending of money resulted.

The Munro inquiry highlighted a report from Oxfordshire county council children’s services authority:

“These types of evidence-based programmes are expensive to set up but there is increasing evidence that, by avoiding the need for looked after children to move to more intensive and expensive placements, they not only provide better outcomes for children and young people, but are cost effective…Collectively in Oxfordshire, these intensive programmes have contributed to lower than average numbers of Looked After Children and resulted in identifiable savings within the existing Children and Young People’s budget. They have helped to address general recruitment issues for foster carers, resulting in an 11 per cent rise in fostering. All types of carers (including foster carers and adopters), have reported improved levels of support, resulting in improved long term stability (67-75% in 2009/10), reduced adoption breakdowns and quantifiable savings in excess of £400,000.”

[Nadine Dorries]

I would like refer to his comments about the importance of making information available to those going through the system. I can quote a constituency case, although not a name, of parents and adoptive parents being told during the process of contact with the previous family not to miss a contact session because they will not get their placement and the child might be taken from them. It is important that parents, adoptive parents and foster parents have something in writing—in an easy to understand way—about what exactly to expect from the system, so that when this culture of slight intimidation or bullying kicks in, they actually know what their rights are in the process.

[John Hemming]

The hon. Lady is entirely right. One of the difficulties that sometimes arises is that people are told to do one thing at one stage, but when they have done that, they are told that it was the wrong thing to do. If things could be put in writing so that people knew what they were supposed to do, they should not then find that they are punished for sticking to it. That happens far too often. There are too many cases where people are not given adequate information.

[John Hemming]

The hon. Gentleman is right that there is too often an element of arbitrary power. The difficulty flows from insufficient academic scrutiny of the whole process—in other words, things are left to the discretion of individual practitioners, all of whom have their individual attitudes. When someone moves from one practitioner to another, the arbitrary power will often be exercised in a different way. I spoke about this to Professor Sue White, a professor of social work at Birmingham university. She is concerned about the change in practice that does not seem to be evidence-driven, but she is not allowed access to family court proceedings unless she is actually involved in the individual case. The ability to do proper peer-reviewed research on the decisions taken and what is happening on the ground is simply not there. The system just goes on.

I try to look at the reports from a scientific point of view, and find that some of them do not hold water. As I said, Professor Jane Ireland’s work pointed out that two thirds of the reports she looked at were either poor or very poor, which is not adequate for the purpose of making life-changing decisions. That lack of intellectual rigour leads to arbitrary power, as the hon. Member for Wycombe (Steve Baker) says. The introduction of intellectual rigour would make that go away and get us back to the rule of law rather than some people having massive discretion. At the moment, we do not have the rule of law setting out what should happen in these situations. That is what gives rise to many different problems in many different areas.

[Nadine Dorries]

It is worth mentioning that the change of case worker, social worker or court worker happens frequently, so arbitrary power is exercised in a number of different ways, often resulting in huge delay, which is not in the best interest of any of the children involved in the cases.

[John Hemming]

The hon. Lady is right. Delay does cause a problem, although speeding things up and not getting things right is another problem. The most important thing is to get things right. When that has happened, that is the time to do things reasonably quickly.

I now return to the Bill and look beyond the issue of family group conferences. Clause 2 looks at the wider issue of scrutiny—academic scrutiny and the like—to which I have just referred. One issue is that of people having other people with them. McKenzie friends are generally allowed to attend court, but it can be a very intimidating process for families. If a young mother is not allowed to take her own mother to court with her for support, the court will not be a very good environment.

A case in, I believe, Finchley involved a Czech family, but the court would not allow a representative of the Czech embassy to attend the court hearing. That strikes me as very strange. Given that it is possible for a person to talk confidentially to almost anyone and ask for advice, why is it not possible for one or two people to sit with that person in court? It would make the whole process more effective, because it would provide psychological support.

Family courts sit in secret. It is generally accepted that anonymity is required, and that demands a certain amount of secrecy. It is not possible for the newspapers to publish all the details of a case. It is true that one of the Slovak cases is being discussed publicly on prime-time television in the Slovak Republic, but if it were on YouTube, YouTube would be subject to a court order to prevent the television programme from being seen in England. I think that the principle of anonymity is reasonable, but beyond that, dangers arise. The lack of academic scrutiny, which I mentioned earlier, is critical.

[John Hemming]

That is the purpose of clause 2(2), which allows academic research to be involved in family court proceedings. The former children’s Minister said that we needed more transparency in the courts, and the National Society for the Prevention of Cruelty to Children has said that it supports efforts to make the family courts more transparent if they do not make it more likely that children will be identified. The Bill achieves that sort of balance.

Proceedings in the family court can be daunting and intimidating for people taking part in them. The report of the recent family justice review by Professor Norgrove found that

“the common complaint”

was

“that the courts are daunting and intimidating places for families”.

Detailed research by the London Safeguarding Children Board established that when families arrive in court to see a large number of lawyers and professionals lined up,

“professionals need to understand how intimidating it is”

for parents

“to be so ‘outnumbered’.”

Clause 2(1) permits parties to have two friends with them to support, advise or advocate on their behalf. In fact, only one of them, the McKenzie friend, will advocate, and obviously if a lawyer is present a lay person will not be required. Much of the evidence that I cited in relation to clause 1(5), including the conclusions of the Justice Committee, demonstrates the need for that.

Clause 2(1) also ensures that the confidentiality of the proceedings is maintained by making the two friends subject to the same confidentiality rule as the party to the proceedings. The protection already exists; the Bill merely provides for someone to be present to offer support—not necessarily to advocate or offer advice, but simply to be there. That is important. Why should a young mother, aged 19 and threatened with the removal of her child, go to court alone? Why can we not allow her mother to go with her? What is wrong with allowing her mother to sit next to her? What is wrong with allowing a representative from the Czech to accompany a Czech citizen to court? Why do we allow so few people to go there?

Clause 2 (2) deals with accountability by permitting the involvement of bona fide academic research in proceedings in the family courts. The Justice Committee concluded that, while family courts sit in private to protect the anonymity of children,

“there is a danger that justice in secret could allow injustice to children”.

That point was made by Professor Jane Ireland, who carried out research on the quality of expert evidence used in the courts. Her study showed that there was a risk of injustice because one fifth of expert psychologists were not deemed qualified, and two thirds of the reports reviewed were “poor” or “very poor”.

In a recent case in the Court of Appeal, it was ordered that a child should be removed from his family on the basis of incorrect evidence concerning his injuries. The Principal Registry of the Family Division ordered that the toddler be returned to his parents after it was established that he was vitamin D and calcium deficient and had undiagnosed rickets. The issue of vitamin D is very relevant. An excellent firm of solicitors in Birmingham, Brendan Fleming, has helped to identify about eight vitamin D-related cases in which miscarriages of justice are likely to have occurred. It is probable that children have been removed from their parents because mum had a vitamin D deficiency and was breastfeeding at the time. It is currently contempt of court to allow an expert medical person to look at all the documents and write peer-reviewed reports. Why is that? How does preventing the more intelligent people from reviewing the paperwork improve justice?

Subsection (2) also recognises the need to keep proceedings confidential, stating that

“any publication of the research removes all identifying details and… it shall be a contempt of court for any person receiving or publishing information pursuant to this section to reveal the identity of any person whose details he has received.”

The Bill protects anonymity while ensuring that there is an intellectual challenge, and that is surely a massive improvement.

Clause 2(3) relates to grandparents and other wider family members of the child. Subsection (3)(a) enables such people to attend the part of a hearing that involves consideration of whether the child should be placed with them. Currently, a court will decide not to place a child with a grandparent when that grandparent is not present. There has been a great deal of debate about whether grandparents should be allowed to be party to court hearings. The problem is the huge amount of paperwork, which creates a massive burden. However, merely allowing grandparents to be present and to participate in discussion of whether or not they would be adequate carers for their grandchildren would not pose a major problem, and would allow any erroneous concern about their ability to look after the children to be corrected at that point rather than being dealt with on the basis of a report written by a representative of the local authority.

[Nadine Dorries]

In the event of a crisis, children are often placed with their grandparents in the immediate instance, and the grandparents then find that they are not allowed to participate in the court process that leads to a decision on the child’s future.

[John Hemming]

Exactly. I understand the reasoning behind not allowing everyone to be a party, and then lawyers being a party, and so forth. However, not allowing a child’s grandparents to be in the courtroom and answer questions about the problems of looking after that child cannot be right. It cannot achieve anything for the child. Ultimately, we should be focusing on the children and what is best for them. In most cases, it is far better for children to be cared for by their grandparents than to be placed with foster carers. In practice, children are often cared by their grandparents as part of normal life. That is not deemed to be in any way exceptional.

[Nadine Dorries]

The hon. Gentleman is being incredibly generous in giving way.

One of the problems, and the reason so many grandparents have to go to court, is the fact that they are not recognised in the benefits system. Foster parents receive far more financial help, as indeed do parents. The grandparents have to go to court in order to attempt to qualify for such help, and, as the hon. Gentleman says, they are prevented from giving any information about the child during the process.

[John Hemming]

Kinship caring happens anyway without state funding, but it is much cheaper than foster care at £800 a week, as well as being generally better for the child’s identity in the long run because the child remains within the wider family. Clause 2(3)(b) relates to grandparents who have a long-term involvement with their grandchildren and have information that can assist the court, which is a slightly different pattern.

Subsection (3) recognises that children may be inhibited from giving evidence in front of certain people. It therefore provides that a judge may exclude the grandparents from the part of the proceedings in which the child is giving evidence if, in the judge’s opinion, their presence would inhibit the child. Obviously, there are difficult circumstances in which such discretion is needed.

Subsection (4) allows grandparents to have

“direct and indirect contact with their grandchildren if the child so wishes without this contact being supervised”

unless that is not in the best interests of the child. That is intended to rectify a problem that has been highlighted by many grandparents.

In their response to the Norgrove review of family justice, the coalition Government said that

“a child’s ongoing relationships with their grandparents and wider family members should be considered when making arrangements for a child’s future.

The Government supports the Review’s recommendation that the importance of relationships children have with other family members should be emphasised”.

The Conservative older people election manifesto 2010 promised to:

“Reform family law to provide greater access rights to grandparents when families break up…

“Grandparents should be one of the first ports of call when a child needs to be taken into care, but at the moment they are not…We will change that”.

That has not been done yet. Labour’s 2010 manifesto stated:

“we will ensure that grandparents and other family members are always given first consideration for adoption or fostering.”

All I am proposing is that they are part of that decision, so if it is suggested that the child should not be placed with them they will be allowed to argue with that proposal and explain where any misunderstanding may exist.

Subsection (5) proposes to amend the Children Act 1989 to require that children taken into care by their local authority are placed near their home, unless that

“is not in the interest of the welfare of the child”.

It does so because of the plethora of evidence showing that placing children far from their home puts them in greater danger. A London Evening Standard report on 12 September said:

“The Standard today exposes the scandal of London children being ‘exported’ to care homes across the country where they are at increased risk of abuse.

Almost two thirds of youngsters taken into care are sent outside their borough and…maltreated and introduced to drugs.”

It goes on to say that police warn that this places the children “in greater danger”.

BBC Radio 4’s “The Report” programme said on 31 May:

“The leader of Rochdale Council says children should no longer be sent to care homes in the borough because their safety ‘is not being guaranteed’.

There are 41 children’s homes in Rochdale, which house vulnerable children from all over England.”

It also said that last year

“an inquiry into Lancashire’s 101 children's homes…found the council and the police had little knowledge of some of the…homes…It also estimated 21,000 children…were being cared for in areas outside their home local authority.”

It reported Councillor Steen’s view that

“placing vulnerable girls, who are susceptible to grooming, so far away from home, can lead to them”

becoming

“‘invisible...so they cannot be monitored or helped.’”

In May this year, a joint inquiry by the all-party group on runaway and missing children and adults and the all-party group on looked after children and care leavers called for urgent action to be taken to reduce that practice of sending children far away from their original areas. Subsection (5) provides that urgent action.

[Nadine Dorries]

The hon. Gentleman is talking about vulnerable children in care who become invisible and are susceptible to grooming. They not only become invisible, but they lose the networks that they could turn to for support and disclose things to. These children are away from their family, friends, teachers, school, neighbours and community, so even if there may have been somebody to whom they could disclose that grooming was taking place, they have been completely taken away from that comfort zone.

[John Hemming]

I agree entirely with what the hon. Lady says about the networks issue. There are so many reasons why this is wrong, but it happens. Urgent action has been called for to fix it, and the Bill provides that.

That leads me successfully to clause 3, which deals with the issue of children in care. We all now know, and it is becoming increasingly obvious on a daily basis, that children in care are not safe. There are always going to be children in care homes, but they are not safe. At the moment, the independent reviewing officer is actually an employee of the local authority. We have talked about how public bodies have a bullying management style, and people are often pressurised. We have talked about how whistleblowers are not protected—the independent reviewing officer’s job is to be a whistleblower in a culture that reacts against whistleblowers.

Clause 3 states that

“if a child in the care of an authority has made a complaint of serious harm—

(a) that complaint shall be investigated and determined by an independent body”.

There is considerable evidence that local authorities have not investigated or have ignored complaints by children in their care.

On 24 September, The Times reported that

“confidential papers showed a decade of abuse in South Yorkshire.”

It said that

“police and child protection agencies have held extensive knowledge of this…for ten years.”

It continued:

“Girls were collected from…residential homes…in Rotherham… Internal care reports and individual case files show that countless girls were betrayed by…police and social services…Confidential documents…reveal how one young girl known by social services to have been abused…was offered classes…to engage her in education.”

It also said:

“As long ago as 1996, a social services investigation uncovered concerns that girls were being coerced into ‘child prostitution’ by…men who regularly collected them from residential care homes.”

It also stated:

“A July 2010 independent review for the Rotherham Safeguarding Children Board…described the offences as ‘child sexual exploitation at the top end of seriousness’.”

Last month, Mail Online reported that Rochdale council and police had had

“127 warnings about sex abuse”.

Its headline contained the words “gang raped dozens of children, finds damning report”.

The article continued:

“NHS warned Rochdale Borough Council…on dozens of occasions over six years about sex abuse risks”.

There are numerous other examples of this.

In the Lancashire case—A and S v. Lancashire county council—Mr Justice Jackson concluded that children in care had “suffered real, lifelong damage” but that the council’s actions

“did not come under independent scrutiny.”

Jon Fayle, chair of the National Association of Independent Reviewing Officers, told Parliament that

“the local authority cannot always be trusted to act in the child’s best interest.”

He also said that having an “independent scrutineer” is “essential”. It is also the wish of children to have an independent complaints system. As Maxine Wrigley, the chief executive of A National Voice, told Parliament:

“an independent person to help you, particularly to make a complaint…seems very important to young people.”

Subsection (4) would make it an offence to discriminate against children in care or care leavers. There is considerable evidence that such discrimination is widespread. A care leaver told us:

“I have twice lost my job when my employers have come across my upbringing, despite having more professional experience and qualifications than my managers. We are viewed as mad, bad or sad.”

Another told us:

“I lost my job and at the Employment Tribunal the barrister told them that as a result of being ex-care I would have a residual tendency to fabricate.”

In July, the current children’s Minister, the hon. Member for Crewe and Nantwich (Mr Timpson), launched a report by the all-party group on looked after children and care leavers. It said:

“There was also concern raised that the attitude of teachers towards children in care remains mixed, with some children being labelled as troublemakers simply because of their looked after status.”

A documentary entitled “Barriers to Employment”, made in 2010 by the young people themselves, reported:

“Young care leavers face discrimination from employers because they are stereotyped as being prone to crime”.

The Who Cares? Trust website states:

“The discrimination faced by children in care is brought to life time and time again through our interactions with young people.”

A lot of these things were raised with me by a group of professional care leavers, who had managed to succeed having left care over a number of years. One of them was Ivor Frank, who was brought up in care but is now a family court barrister. His concern was that no remedy was available for care leavers; there was no way they could adequately challenge the system.

It is worth examining what happened in the A and S case. They were two children in the care of Lancashire county council. They were known as “statutory orphans”: they had been freed for adoption before 2005 but had never been adopted. As at 31 March 2011, about 1,300 children had been freed for adoption or placed for adoption more than two years before that date without having then been adopted. If we are going to worry about the adoption of children placed for adoption, we should be examining the situation of those 1,300 statutory orphans. They have been told, “Your parents are no longer your parents” but they have not been found any other parents.

In the case of A and S, when the older boy got to be an adequate age, he found a solicitor who then acted on his behalf. We should not have to wait until these children get to 16—if the NSPCC, as advocate, feels that something is going wrong, it should be able to get an independent review and, if need be, to take the case to court. That is why subsection (2) proposes a scheme whereby a “litigation friend” can be appointed for a child to take the issue to court. The A and S case was not looked at by the court from the time they were placed in care until about 10 years later, because nobody took it back to court to challenge the authority. An independent reviewing officer was in place, but the local authority obviously does not want to be challenged. In practice, it was concluded that human rights had been abused to the extent of not only maltreatment but the breaking of article 3—the no-torture article. There was inhumane treatment of the children when they were in care—we are not talking about before they went into care.

This issue about a remedy being available for children in care does not mean that everything has to go to court, because it is the facility for something to be taken to court that makes people respond. If the local authority feels it can just fob everyone off and ignore them, it will do so and nothing will happen. However, if the local authority knows that someone can take the matter to court if they want and the authority will be forced to deal with it, it is more likely to respond. That is why subsection (2) is important. If the Government do not like subsection (2), it can go away under statutory instrument at the point at which the Government have found a better way to deal with the issue.

There is no alternative but to have an independent mechanism by which a child can complain—potentially, the general practitioner. If the GP feels that a child in care is not being looked after adequately and there is a serious problem, the GP should be empowered to take that through a proper process that could end up in court. The difficulty with the system at the moment is the eternal question of quis custodiet ipsos custodes? The organisation responsible for the quality of care is the local council. In other words, the council is responsible both for providing the care and for monitoring its quality. We should all know that that sort of system does not work and cannot be allowed to continue.

On criminal records, children in care complain that the police are often called for things that they would not be called for if the children were not in care. A relatively recent prosecution involved a child who threw a bowl of cereal at the carer at breakfast. The real problem is that that prosecution follows the child through life. Events that would have been ignored normally end up in a criminal record for assault. When the child becomes an adult, tries to find a job, gets a Criminal Records Bureau check and is told, “You assaulted someone when you were 13,” it comes across really badly. In fact, the child might just have thrown a bowl of cereal. To be fair, that might not happen that often, but it is the sort of thing that can happen when a child is upset. People do get upset from time to time. A parent would generally not take that through the legal system.

I do not suggest in the Bill that we should force people not to take such things to court. All I am saying is that such things should not follow children through the rest of their life just because they got a bit upset when they were 13. That creates an environment where children get used to a higher level of interaction with the authorities, and that is not a good thing. So clause 3 deals with children in care.

On adoption without parental consent, clause 4 basically says that when parental consent is dispensed with for an adoption, the courts should explain why and give the reasons, because normally they do not. In section 1(4) of the Adoption and Children Act 2002, Parliament laid down legal safeguards to which the courts must have regard that include the child’s wishes, where old enough, and needs; the lifelong effect of the child’s losing contact with the birth family; the harm that the child has suffered or might suffer; the child’s relationship with their relatives and the value to the child of its continuing; the ability of the relatives to provide a secure home for the child; and the wishes of the relatives. Parliament has decreed that that must be considered by the judge, but that does not happen a lot of the time. Clause 4 would ensure that that is considered.

Dr Roger Morgan, the Children’s Rights Director for England, told Parliament that children have a strong message: always look to see whether there are family or friends. That is what children say. If a decision is to be taken to move a child from one family to another, the court should explain the basis of that decision, not just say, “We think that it’s a good idea,” which is normally what the judgments say.

On the other duties of local authorities, clause 5 basically talks about improving the relationship with grandparents and deals with the duties of local authorities and other bodies when children are in care. Although clause 5 would maintain the position established by the Children Act 1989 that the welfare of children is of paramount importance, it would also require the local authority to ensure that the child has access to and contact with both parents and grandparents, unless such contact was not in the interests of the welfare of the child.

As pointed out previously, clause 5 is in accordance with the coalition Government’s policy and in the manifestos of the Conservative and Labour parties. I would personally prefer to go further. A quite serious problem is developing with the assessment of grandparents. At times, the same assessment is used for grandparents as for foster carers. As part of the consultation, we excluded from the Bill a clause that would have said, “If the grandparents of looked-after children have looked after them adequately, do not assess them,” but I should like to see that in law. If we go round assessing everyone all the time about everything, we achieve nothing.

What often happens, as in the example given by the hon. Member for Mid Bedfordshire (Nadine Dorries), is that children are removed from grandparents because they have not been assessed, when in fact there is no evidence of a problem. Obviously, there are circumstances where, perhaps historically, those grandparents have a bad record of looking after children and have been subject to child protection proceedings. However, just to say simply that all grandparents need assessments is not right. Again, as part of the consultation in an attempt to make the Bill less contentious, that proposal was dropped.

On the provisions that relate to the administration of justice, these are again similar issues, some of which are dealt with by the family courts and the Court of Protection, but they are also dealt with more widely. I have previously talked about the right to report wrongdoing, but this goes beyond the whistleblowers charter; it is the business of ensuring that, for instance, the police who threaten the hon. Lady’s constituents in an attempt to stop them reporting problems to her would be committing an offence. If we wish the rule of law to apply, we cannot tolerate people being prevented from complaining. If they are prevented from doing so, the authorities do not know that the rule of law is being breached and therefore no action can be taken.

Clause 7 is one of two “no more cover-ups” clauses. Subsection (1) would ensure that people have the right to complain to regulators, whether the police or anyone else. I have encountered a number of court orders that have been purported to prevent people from complaining to regulators. In fact, notwithstanding the Family Proceedings (Amendment) (No. 2) Rules 2009 No. 857, it is still a contempt of court to report experts who are clearly talking nonsense to regulators at times. However, similar constraints have existed on reported crimes. If such orders are appealed to the Supreme Court, they are likely to be struck down, but it is quite difficult to take cases through the appellate system, hence protection is needed at a lower level.

--- Later in debate ---

[Nadine Dorries]

Given that there are court transcribers, one would assume that anybody attending the court would have a right to the transcript of a judgment. Not only is it not possible always to get a transcription, but when it is possible, it takes a considerable time. In that considerable time, the appeal is in abeyance and kept waiting—it cannot be lodged.

[John Hemming]

The hon. Lady is entirely accurate, but in addition, the tape recording gets lost.

[Nadine Dorries]

Conveniently.

[John Hemming]

Whether it is convenient or not, the fact that the tape recording is lost does not help the process.

In part 3, clauses 13 and 14 aim to reduce fuel bills by being more efficient. When I visited the Royal Observatory in Greenwich, I was impressed by the efforts of Parliament in the 18th century to encourage the development of advanced timekeeping technology in the Longitude Act 1714. That was an early demonstration that Parliament can, through statute, achieve positive outcomes in the development of technology. As someone whose academic qualifications are in science—my first degree is an MA from Magdalen college, Oxford, but I specialised in atomic, nuclear and theoretical physics—I sometimes feel that the physical laws are treated as insufficiently important in the public sphere. I take the view that the laws of physics will always trump the laws of economics, and do not understand a reality in which that is not true.

Two key laws are relevant to energy policy—one is the law of conservation of energy, which is also known as the first law of thermodynamics, and the other is the second law of thermodynamics. The first law says that we cannot get any more energy out of a system than we put in. If we take the chemical energy in a hydrocarbon such as methane, ethane or propane, and oxidise or burn it, no more energy can come out than goes in. We can get a mixture of energy out. We could get a physical force such as torsion to provide motive force, or electricity plus heat, or just heat—and, of course, any residual chemical energy.

Of the second law, Lord Kelvin says:

“It is impossible, by means of inanimate material agency, to derive mechanical effect from any portion of matter by cooling it below the temperature of the coldest of the surrounding objects.”

That means that there is a limit to how much work, such as torsion, can be obtained by burning a fossil fuel or other hydrocarbon. The rest of the energy goes as heat. Interestingly, the maximum efficiency of an ideal heat engine—the Carnot cycle—is calculated as the ratio of temperatures in degrees Kelvin.

The combined-cycle gas turbines that we use for a lot of electricity generation manage an efficiency of 55% in generating electricity and 45% in producing heat by having two heat engines running in series. Attempts are made to make use of the waste energy from power generation by combined heat and power schemes by circulating hot water. Clause 13 develops a strategy for smaller-scale combined heat and power schemes, so that more like 90% to 95% of the chemical energy in the gas can be effectively used, rather than the current maximum, which is more like 50%, particularly when transmission losses are taken into account.

The Bill also involves passive flue gas, which is another step in converting more of the chemical energy into heat for warming water rather than its going out into the air. Clearly, therefore, if we get almost twice as much useful energy from the energy source, over time, we would reduce energy bills by around half, which is a good outcome for families and fuel justice. The economic models that have been issued show that there is no cost to the public purse. If implemented properly, the measure would simply achieve a result. The aggregate cut of energy bills from the use of passive flue gas would work out at about £1 billion a year for the whole country, which is a substantial saving for families and an improvement in fuel justice. All those measures are cost-effective for the consumer and the taxpayer.

However, it is important that a critical mass is created so that the market can make appropriate investments in technology. If we manage to halve energy bills and reduce the winter heating bill, we would reduce fuel poverty. The mechanism improves fuel justice for families.