Clause 2 - Meaning of “early childhood services” for purposes of section 3
Childcare Bill
5:00 pm

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I beg to move amendment No. 68, in clause 2, page 2, line 15, after ‘services’, insert ‘or children’s services’.

Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following amendments: No. 69, in clause 2, page 2, line 25, at end insert

‘ “children’s services”, in relation to a local authority, has the same meaning as in Section 23(3) of the Children Act 2004 (c.31).’.

No. 212, in clause 16, page 9, line 6, at end insert—

‘(4)In section 19 (Lead member of children’s services), after paragraph (a) insert

“(aa)the functions conferred on or exercisable by the authority specified in Part 1 of the Childcare Act 2006,”.’.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

We are making rapid progress: we are on clause 2—and it is dark.

Again, these are probing amendments that set out some of the differences, or similarities, between the Bill and the 2004 Act. The Act talks of children’s services departments. I know that there have been big changes in local authority social services departments, which are now split into adult services departments and children’s services departments. As part of the 2004 Act, local authorities are required specifically to establish directors of children’s services, a function that we agree with, as the buck with whom responsibility should stop for problems relating to the abuse of children or indeed welfare criteria. That was a new provision in the Act that we very much supported.

In probing with amendments Nos. 68 and 69, I am therefore asking the Minister why we still refer to the local authority’s social services functions, when, to mirror the terminology of the 2004 Act, we could refer to children’s services. Clearly adult services will not have a direct role in this matter, which is limited to children’s services. Amendment No. 68 would make that change in clause 2(1)(b). The addition of children’s services, again as per the 2004 Act, is   relevant in subsection (2). Either there has been a mistake or there is a good reason for the drafting, on which the Minister will enlighten us.

I deal now with the third of the trio of amendments, although I think I know the answer to this point, which was raised by the National Union of Teachers. Another element of the reorganisation of social services into children’s services departments is the fact that there should be a lead elected member of the local authority who will have responsibility over various children’s services matters. I think that that responsibility is automatically transferred, as part of the legislation. Is that the case? I am referring specifically to clause 16. If that is not the case, why is the lead member for children’s services not being given responsibility over this child care legislation, considering that he or she has been given responsibility for the other activities of children’s services through the 2004 Act?

These probing amendments were tabled to try to get some continuity with the 2004 Act. I see that in-flight refuelling is now arriving to give us a reason for the difference.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

It is a great pleasure to get to my feet at last, not least because it gives my back a bit of a rest. The hon. Member for East Worthing and Shoreham says that it is dark, which it is, but it is also early yet, so I do not feel I have done too badly to have waited this long.

The hon. Gentleman moved the lead amendment and spoke to the others in the group with great precision and admirable brevity. He said that they are probing amendments, but their purpose seems to be to expand the services listed in clause 2 to include all of the children’s services in the 2004 Act and to widen the remit of the director of children’s services to cover all the functions in part 1 of the Bill.

The amendments deals with the legal foundation for early childhood services. The duty on local authorities to improve the well-being of young children, set out in clause 1, is one of the key tenets of the Bill. Clauses 2 to 4 set out the broad legal framework of minimum requirements, within which local service providers have maximum autonomy to plan the delivery of services for young children in ways that best suit local circumstances. The new duties will operate with the arrangements for children’s trusts, and the director of children’s services and the lead member for children’s services already being established under 2004 Act.

The answer to the hon. Gentleman’s question about why there is a reference in the clause to social services rather than children’s services is that social services functions are set out in the Local Authority Social Services Act 1970, and that the children’s services in the 2004 Act include only those services that relate to children. I do not think that the fact the clause refers to social services and not children’s services will cause any confusion or difficulty.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I follow what the Minister says, but the 1970 Act is quite old. Obviously, there has been a fairly major transformation of social services   departments since then. Would it not be sensible to use this legislation to recognise the differentiation that is happening as we speak within social services and the clear definition of children’s services departments and what they are now responsible for?

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

I understand the point the hon. Gentleman makes. My understanding is that the way this is set out in the clause will deal unequivocally with children’s services as they are defined in the Children Act. It is not necessary for us to use the wording that he suggested. I am not saying that it would not be possible to use that wording. Parliamentary counsel can do many things, but I am advised that it is not necessary to make any such changes. I hope that that reassures him.

There is certainly no difference between what we are trying to say and what the hon. Gentleman is trying to say. Were we to use the phrase “children’s services” as in the 2004 Act rather than “social services”, it would include all children’s services, not just those that relate specifically to young children. We have had a debate about what should be included and we will talk about that again. The hon. Gentleman will see from clause 2 that we are dealing with services that pertain to improving the outcomes for children under the age of five. We do not believe that the present wording leads to any defects or confusions. I do not claim that the wording could not be different, but there is no confusion as far as we are aware.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I am confused. If the Minister is saying that changing to a children’s services department would in some way bring in all the activities of the children’s services department which are not relevant to the Bill, surely the use of the existing phrase—social services—brings in not only all the children’s services departments, but all the adult service activities that come under the umbrella of social services. The Minister is making the situation worse if that is the criterion, which is why I am rather confused.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

Clause 2(1)(b) refers to

“the social services functions of the local authority, so far as relating to young children, parents or prospective parents”.

It makes it clear that we are not trying to make the clause cover all social services, including adult social services and their activities. It is always possible for drafting to be different and still to do the job that we all want it to do. I think that this wording is fine. If we used the phrase about children’s services that relates to the 2004 Act we would bring in more services than we are seeking to do.

The intention is that clause 2 should define very precisely early childhood services for the purposes of clause 3 and later bits of the Bill. It defines them in respect of early years provision, health services, employment services and information services for the sake of clarity. We do not want to do anything that would undermine that clarity.

Annette Brooke (Shadow Minister, Education & Skills; Mid Dorset and North Poole, Liberal Democrat)

As the Minister was speaking, it became clear that we need adult social services for parents with disabilities, parents with mental health   problems and so on. I think I am beginning to share the concern of my hon. Friend the Member for East Worthing and Shoreham about whether children’s social services are clearly identifiable now, given that we have integrated children’s services. Adult social services are clearly distinct still, but I am now unconvinced about what the Minister is saying. I am not sure that I could go to my local authority and say, “I want to go to children’s social services”, or find somebody who specifically works for children’s social services. I am not sure, as we are progressing towards full integration of children’s services, that that is the case.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

I am sorry to have unconvinced the hon. Lady; that was not my intention. The Bill includes social services functions in relation to young children, parents or prospective parents. The hon. Lady and others will know that children’s centres have a focus on prevention, so the functions include family support services, which might, for example, deal with parenting classes, fathers’ groups, debt counselling and other help and support at key stages. All that kind of thing is included. That reflects the importance of providing early support to prevent things from going wrong, and to ensure that we can meet our overall obligation under the legislation, which is trying to improve outcomes generally and improve those of the most disadvantaged most. We will not go back into that at present—we had that debate this morning—but we believe that the phrasing is right. We do not have a concern that the way in which clause 2 is worded will cause confusion or exclude services that ought to be important in ensuring those objectives. It is certainly true that there are other adult social services out there, as my right hon. Friend the Minister made clear during the debate on amendment No. 176.

We are not being prescriptive and saying that no other services or other elements of what the local authority does can be included in that work. However, we are setting out the minimum that we want to be included in clause 2 where we are defining early childhood services. We are not trying to say that it must be this and no other, and in the context of the children’s trusts and the children and young people’s plans it is specific to local authorities that have different situations and different circumstances and populations. Locally, they may decide that they want to include various other agencies and other bits of the local authorities, the public sector and the state generally. The clause sets out—I thought, quite clearly, but obviously, I have not been able to convince hon. Members opposite that it is as clear as we thought—what we mean by early childhood services. I hope that provides some reassurance to the hon. Member for East Worthing and Shoreham, but no doubt he will let me know whether it does when he replies.

On amendment No. 212, the hon. Gentleman expressed a concern that locally elected members should have responsibility for the duties set out in the   Bill. However, I have some good news for him: I can tell him that his amendment is not necessary, not because I disagree with what he is trying to achieve with it but because the relevant statutory provision, which would achieve what he is seeking to achieve, has already been made. Clause 16(2), which amends the responsibilities of the director of children’s services, as set out in the 2004 Act, to include the new duties on authorities under part 1 of the Bill does the job. In the Children Act, the responsibility of the lead member for children’s services simply refers to the duties of the director of children’s services, so no further amendment is required to bring the new duties within the lead member’s remit. As they are brought within the remit of the director of children’s services, so they are brought within the remit of the lead member.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

The Minister referred to clause 16(2) of the Children Act 2004.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

No, of this Bill.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

Right, because clause 16(2) of the Children Act is to do with safeguarding children’s boards.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

In respect of this group of amendments, we are leaping around between different clauses. I was referring to clause 16(2) of this Bill. The job that the hon. Gentleman seeks to do with amendment No. 212 is already done by that clause, which we keep reaching in various different ways, and no doubt will continue to do, depending on the grouping of amendments. He can withdraw his amendment, secure in the knowledge that we have accepted that what he is trying to achieve should be achieved and we have achieved it in clause 16(2).

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

As I said, I suspected that that was the case for that amendment; I just wanted it to be made clear. However, I am rather less clear than I was when I started, as the hon. Member for Mid-Dorset and North Poole is, on why the terminology “social services” is still being used. Amendment No. 68 would take nothing away; it would add the phrase “children’s services”. Children’s services would simply also be covered by the phrase

“so far as relating to young children, parents or prospective parents”.

The amendment does not encompass all the functions of the children’s services department; it merely hones it to the children’s services part of the social services department, which is in effect becoming defunct because it has been split into two main activities.

I am concerned because the whole point of establishing children’s services departments was to create a line of accountability and somewhere that the buck would stop. That is the recommendation in Herbert Laming’s report on the Victoria Climbié affair. There were many different lines of responsibility, none of which resulted in the buck stopping somewhere meaningful. We were keen to support the establishment of children’s services departments because it set up departments that   concentrated on the welfare of children and that brought various agencies—health, police and justice agencies—together with social workers so that all the relevant information could be dealt with and all the relevant observation carried out, and that information could be passed up the responsibility chain. Key decisions that needed to be made were to be made ultimately by the director of children’s services. When things went wrong, the accountability chain and the buck stopped firmly at the desk of the director of children’s services. That is a very important part of the Children Act 2004, with which we all agreed.

It is important that authorities that are in the process of recruiting directors of children’s services do so as quickly as possible to join up all those different strands of information, support and services. My concern is that that line of accountability and the protection that it affords children under the 2004 Act should be just as relevant when applied to younger children under this Bill.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

I shall try to assist the hon. Gentleman and to be as clear as I can about why the amendment would be more rather than less confusing. Amendment No. 68 suggests that a reference to “or children’s services” be placed after what is already there, which is a reference to “social services functions”. The provision continues:

“so far as relating to young children, parents or prospective parents”.

The hon. Gentleman would bring into the remit of the clause all children’s services, not just those that relate to the young children for whom the clause is designed to improve outcomes. That might seem a minor point, but it is why I say that what is currently in the Bill does the job. I understand his point that referring to social services instead of children’s services appears to be a throwback to the past, but it is not intended to be and it will not be in practice.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I think that the hon. Lady is wrong. I cannot see how adding “or children’s services” would bring in all the children’s services departments’ responsibilities and activities if we retained the

“so far as relating to young children, parents or prospective parents”,

which we propose to retain and never proposed to take out. It is just not possible that adding an extra qualification can open up the provision to all sorts of activities. Ideally, I would have the amendment take out the reference to social services and replace it with “children’s services”, subject still to the relevance considerations. I was not sure why social services were included, and that is why I added children’s services by way of a probing amendment.

The Minister has got into a bit of a tizz about the amendment. What was only a probing point has turned out to be something of a concern, for the reason I discussed. It is essential that the accountability chain ends with the director of children’s services, because my understanding is that in the Bill all considerations pertaining to the local authority are the responsibility of children’s services departments of local authorities and, ultimately within that department, the director of   children’s services, who is either in place or will be required to be in place in short order under the Children Act 2004.

I am not sure that under the Minister’s wording children of a younger age who will be subject to the provisions of the Bill will be covered by the same level of protection that a director of children’s services, who is ultimately responsible for things going right, but more importantly, for things going wrong, affords them under the 2004 Act.

It is an omission, and I should be grateful if the Minister could provide any new assurances, because I fear that she has not done so up to now. If she cannot, I should ask either for her to reconsider the wording of the clause and, specifically, our amendment, or for the Committee to push the amendment to a vote. It is an important point, and the Minister has not properly addressed it. Indeed, her last statement was simply wrong.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

I have done my best to convince the hon. Gentleman and I have clearly failed, which is a shame. I cannot say anything further other than repeat what I have said, and that would not be a good use of the Committee’s time. In that sense, I am unable to provide him with the further assurance that he seeks.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I am disappointed, because I had hoped that the Minister would at least say that she would go away and consider the matter. The story seemed to be changing as we went through the explanation of the amendment. We are entitled to ensure that the same degree of protection is afforded to children under this Bill as we all agreed was needed by setting up children’s services department with a director of children’s services in the 2004 Act. On that basis, I ask the Committee to vote on amendment Nos. 68 and 69, but not on amendment No. 212, as we are happy to withdraw it.

Joe Benton (Bootle, Labour)

For the benefit of the Committee, the lead amendment is amendment No. 68, which I shall put to the Committee.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I beg to move amendment No. 213, in clause 2, page 2, line 26, after ‘child’, insert

‘, or an employee of an English local authority with responsibility for the care of a young child,’.

Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following amendments: No. 214, in clause 6, page 4, line 39, after ‘individual’, insert

‘, including an employee of an English local authority with responsibility for the care of a child,’.

No. 215, in clause 12, page 7, line 16, after ‘person’, insert

‘, or an employee of an English local authority with responsibility for the care of a young child or young person,’.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

The amendments are very much of the same character. They deal with the important subject of looked-after children, which we were keen to discuss in some depth in the 2004 Act. I know that the issue exercises the mind of the Minister and many colleagues in my party because of the appalling outcomes for looked-after children in this country. Those outcomes have been a scandal for many years and they continue to be a scandal.

By almost any measure, looked-after children—of which there are some 61,000 in England—get a raw deal. At every level, their educational achievement lags enormously behind that of children living with birth parents. Their health outcomes are appalling: for example, 30 per cent. have had no vaccinations at all, and almost one quarter of children in care have a major depressive illness, compared with some 4 per cent. of children in general. We all know that a much higher percentage of looked-after children end up with depression, as rough sleepers, homeless, involved in teenage pregnancies or lacking training. Only 1 per cent. go on to university. Therefore, it is important that we give them some consideration in the Bill.

The purpose of these virtually identical amendments is to add to the definition of “parent” in clauses 2, 6 and 12. It is not clear that looked-after children have been considered in the definition. In clause 2(2), a parent is defined as

“a parent of a young child, and includes any individual who—

(a) has parental responsibility for a young child, or

(b) has care of a young child”.

I hope that the Minister will tell us that that implicitly involves looked-after children, with the local authority acting as the corporate parent. I am keen to single out such children as requiring special mention in the Bill, and to address a potential anomaly in that the local authority may end up acting as a regulator, monitor, provider and consumer of child care services. That territory leads to conflict of interest.

Who determines if there is sufficient child care provision in a local authority’s area—we will be discussing this later—if there is a not insubstantial group of children who need access to such child care places or other provisions, and who are the responsibility of the local authority either through direct provision in children’s homes or, more commonly, through the use of short-term and long-term foster parents? Might a local authority claim that it has discharged its functions under the Bill by procuring sufficient child care places in its geographical area of   responsibility either by procuring provision from the public sector and the private, voluntary and independent sectors, or, if it is deemed necessary, by providing the places itself? If certain looked-after children have difficulty in accessing those child care places, who will challenge the local authority’s ruling that it has made sufficient provision?

Such circumstances, which are not extreme, could arise. In such circumstances, looked-after children could again be at the bottom of the heap. It would be useful to have a debate on what will be expected of local authorities when dealing with children in their care. Are those children to be considered on an equal basis in relation to gaining child care places, or will they be an afterthought because they will not complain much if they do not get places because an employee of the local authority is ultimately responsible for them? If a foster parent complains about the lack of child care provision, the child could be passed on to another foster carer.

These are probing amendments; we need to debate this important area of child care. It would be useful to have the provisions set out in detail so that we can avoid any possibility of a conflict of interest later. The children about whom we are talking deserve and require special help, and need access to the sort of help that the Bill is all about. Obviously, many of them will not require child care places in the normal sense because they are under the full-time care of foster parents, but flexible arrangements will be required to help those foster parents as well.

Those are my reasons for specifically setting out looked-after children as being the responsibility of local authorities. I gather that the wording “looked-after children”, which I originally intended to use, is not acceptable in parliamentary procedure. Therefore, the amendment proposes that the definition of a parent should include

“an employee of an English local authority with responsibility for the care of a ... child.”

I believe that these probing amendments are worthy of a response from the Minister.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

I hope that I can provide reassurance on the points that the hon. Gentleman raised. I agree with him about the importance of looked-after children and the difficulties that they still face. When one looks at outcomes, it becomes clear that they are not doing as well as their peers who are not in care. I agree with him that when we come to evaluate the effectiveness of the legislation should it pass through its legislative stages in this House and the other place, the outcomes for looked-after children will be a key part in determining whether we look back on the Bill as a success and whether it does what we intend it to do.

Some of the figures that the hon. Gentleman mentioned are absolutely right. In fact, in any one year, we are talking about some 90,000 rather than 61,000 children, because children come in and out of care, sometimes on a short-term basis. Although it is still a small minority, the figure is slightly larger than the one that he mentioned, which refers to children who are looked after from the beginning to the end of any one year.

The amendments would specifically include in the definition of “parent” in clause 2 individuals who are employed by local authorities to try to capture those who are looking after children in care. In the clause as it stands, a parent is defined as including any individual who

“has parental responsibility for a ... child, or ... care of a ... child.”

Therefore, any carer who is looking after a child on behalf of a local authority, regardless of who their employer is, is already included by virtue of being an individual with care of a child. I think that the hon. Gentleman suspected that that was the case, and he was right to do so. The intention is to ensure that when carrying out the new duties to improve outcomes, secure sufficient child care and provide information, local authorities do not lose sight of the looked-after children who are in their own care. That is the intention behind all the amendments tabled by the hon. Gentleman. That is, of course, not only laudable as an objective, but achieving it will be essential to the success of the Bill.

As the hon. Gentleman also said in his opening remarks, the consequences for looked-after children—the fact that they do so much worse than their peers who have not been in care—is reflected in the figures for homelessness and worklessness. He mentioned teenage pregnancy in that context, although he did not mention offending. A disproportionate number of those who have been in care engage in offending behaviour, and the consequences of that can be catastrophic, not only for the individual, but for others in society. Those are just the kind of children that the Bill should assist.

I think that there is agreement on both sides of the House about the importance of ensuring that the provisions of the Bill have an impact on looked-after children. We had a bit of a debate about gaps this morning and I think that the obligation to narrow the gap between those achieving the best and the worst outcomes will focus the minds of local authorities, and those on whom the obligations are placed in practice, on how to improve the outcomes for those who are doing worst, which, in many instances, will be looked-after children. The overall aim and intention of the Bill, if its provisions are implemented properly, is to focus its good effects particularly on looked-after children.

Looked-after children who are under five are entitled to their free early-years provision in the same way as other children. The local authority is under a duty to secure that provision under clause 7.

I shall clarify the point that the hon. Gentleman made about children’s homes. Clause 18(5) means that a place in a children’s home is not defined as child care in the Bill. The duty of the local authority to secure sufficient child care remains unchanged.

All hon. Members can agree on the need to bear in mind especially the impact of measures on looked-after children who, as the hon. Gentleman said, have higher levels of ill-health—often mental ill-health—and much higher levels of special educational needs. If the Bill, when it is enacted, is to make the difference that we all wish to see, it must have a positive impact on looked-after children.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I am encouraged by the Minister’s words, and there is a great deal of agreement between us on this matter.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I was about to start a really ace intervention, but I have forgotten the train of it. I think the question I was going to ask the Minister related to the possible conflict of interests. What mechanisms are there for ensuring, as we both hope will happen, that looked-after children at least get equal access to nursery place provision or whatever it may be? The local authority will not blow the whistle on itself if those children have been disadvantaged in some way.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

It is amazing how all the best interventions disappear on the way down to the Lobby. That was what the hon. Gentleman was starting to say, so he seemed to have remembered it pretty well. The outcomes from the Bill and the obligations that it imposes upon local authorities to improve outcomes will be tested by joint area reviews and by our comprehensive performance assessment. We will look for signs of improvement.

In this new world, partly signalled by children’s trusts, we are moving away from precisely establishing detailed targets from Whitehall for specific ways of doing things. However, the corollary is that we will test local authorities in respect of the new obligations that they are being placed under, specifically here to increase the well-being of all children and to narrow the gap between those doing better and those doing worse. We will do that with a panoply of assessments and inspections.

The hon. Gentleman will also be aware that various inspection regimes—we will come to the effect that the Bill has on those in due course—will also look specifically at the outcomes for looked-after children. He might also be aware, because he will have read the schools White Paper, that we said that we were looking at new policy interventions to try to give a further boost—we all accept that it is needed—in policy terms to ensure improved and better outcomes for looked-after children.

Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

The purpose of these probing amendments was to get a discussion on looked-after children. There may be opportunities later in the Bill to return to that subject. It is useful that the Minister and I have both put on the record the absolute imperative that looked-after children are in no way disadvantaged in gaining access to some of the child care provisions that are available to other children who happen to live with their birth families or some other form of extended family or carers. I am grateful to the Minister for her elaboration. I beg to ask leave to withdraw the amendment.