National Care Standards Commission (Children's Rights Director) Regulations 2002

– in the House of Lords at 7:44 pm on 20th June 2002.

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Photo of Baroness David Baroness David Labour 7:44 pm, 20th June 2002

My Lords, I beg to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 3rd May, be annulled (S.I. 2002/1250).

The purpose of this exercise is to ensure debate in the House on the regulations and to persuade the Government that they should think again and give the Children's Rights Director some real powers to protect very vulnerable children.

Many in the House believe that the Government should establish a children's rights commissioner to promote and protect the rights of all our children and are bewildered that the Government still seem resistant to the idea in England, despite the appointment of a commissioner in Wales and commitments to a commissioner in both Scotland and Northern Ireland. This debate is not about that proposition but concerns the protection of very vulnerable children, whom we all agree need special protection.

In 1998, the then Secretary of State for Health, Frank Dobson, announced regional children's rights officers. By the time that the Care Standards Bill was presented to Parliament, that proposal had been reduced to a single Children's Rights Director within the National Care Standards Commission. Assurances were given in both Houses that the Children's Rights Director would be a champion for children. The Minister in another place stated that,

"the director will, I hope, be able to act as a powerful champion for some of the most vulnerable children in our society...children who need the additional protection that a powerful children's rights director can offer. Our challenge is to rebuild the confidence and faith of vulnerable children in a system that has failed them for far too long".—[Official Report, Commons, 6/4/2001; col. 667.]

This House tried to strengthen the role of the director in the Care Standards Bill but was assured that would best be done in regulations. We all acknowledge that the state—acting in effect as the parents—has failed many children lamentably. One measure of the failure is that by early in 2000 there were investigations into abuse at more than 500 residential children's homes across England and Wales, with at least 5,000 alleged victims. According to the Association of Child Abuse Lawyers, there were 80 police inquiries into abuse in care in progress throughout the country.

The Department of Health issued the regulations in draft for consultation on 18th January, with a deadline for responses of 11th April. By 3rd May, the regulations had been laid. That is a mere three weeks, which is a very short time. One might say they were laid with commendable speed but children's organisations raised serious concerns during the consultation period and they have not been addressed. Organisations, including those for children in care, asked for a meeting with the Minister but were refused.

The regulations as laid do not differ substantially from the draft. A "powerful champion" for children living away from home needs to have the right of immediate access to those children in all kinds of residential homes and schools. He—the first holder of the post is a man—needs to be able to require bodies and individuals to furnish him with information. A champion needs to be able to take or at the very least support legal action on behalf of children.

In another place, the Minister stated also:

"We do envisage the children's rights director having the opportunity and the ability to take up such cases—individual cases as appropriate—as are brought to his or her attention by individual children".—[Official Report, Commons, Standing Committee G, 4/7/2000; cols. 673-74.]

But the regulations make no mention of the director having the power to investigate any cases at all. The director is an officer of the National Care Standards Commission, who is appointed to secure "as far as possible" that the commission carries out its functions in relation to children properly; to ascertain the views of children and their parents about regulated services; and to monitor and review arrangements made by providers of regulated children's services.

Those are important functions, but they do not really add much to the National Care Standards Commission itself. The director cannot be said to be independent and the functions certainly do not justify the description "powerful champion" for these children.

In contrast, children in residential care and receiving other regulated services in Wales have been given a Children's Commissioner who does have—in relation to similar children—very much stronger powers and duties in primary legislation and in regulations issued by the National Assembly for Wales; for example, to require information and disclosure of documents; to examine individual cases and to compel attendance of witnesses and disclosure of material. In so doing he has the same powers as the High Court. He can assist children in making complaints, and in legal proceedings. He has a clear annual reporting duty. The regulations link his role to the Convention on the Rights of the Child, and so on. All this is in addition to the Care Standards Inspectorate for Wales.

So, not only are all England's 11 million children being deprived of a children's rights commissioner, but with these weak regulations, not even our particularly vulnerable children in care are getting the "powerful champion" they were promised, and which they certainly need and deserve. I hope that the Government will think again. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 3rd May, be annulled (S.I. 2002/1250).—(Baroness David.)

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I am sure that the noble Baroness, Lady David, does not really hope to end up without the Children's Rights Director in the National Care Standards Commission as a result of this debate. Here I declare an interest as the vice-chair of the commission. Whatever the debate is about a children's commissioner, I believe that there is another debate to be had. We should concentrate on what we would be losing if we annulled these regulations, which I seriously hope we shall not do this evening.

What we have at present is a Children's Rights Director in the form of Roger Morgan, who has taken a great deal of time to write the regulations for children's services in the commission, and writing into them standards that will ensure that children will be listened to and that children who are brought together to discuss their issues will have access to all kinds of other people. Clearly, Roger Morgan does not have the kind of role and responsibilities that a commissioner would have, but there is capacity within the Act for him to be given additional responsibilities if the Government felt that that was appropriate.

At present, Mr Morgan has capacity to undertake case work through the inspectors of the National Care Standards Commission. I take a rather structural view of the situation; namely, that he has far more capacity to get, through the inspectors, dozens of officers visiting children's homes and other institutions around the country than would be the case if we had one person with a couple of assistants to deal with children's issues. We should not underestimate the structural issues when discussing a commissioner and the role of the Children's Rights Director in the National Care Standards Commission.

Mr Morgan has already been visiting young people. As soon as we have dealt with the regulations, he intends to visit regularly. I have heard him talk to children directly. He has a marvellous capacity for ensuring that their voices are heard. I believe that he will take forward very much the champion's role for children in regulated establishments. I recognise that there may be a wider role needed as regards other children, but this is for children in regulated establishments. In saying that, I should point out that I am talking about some of the most vulnerable children in our society.

Whatever the outcome of tonight's debate, I should like to make sure that we do not lose this role in the National Care Standards Commission. It is crucially important that we recognise that changes have taken place within children's homes. Because I worked in the area and especially in child protection for many years, I recognise that a good deal of historical abuse is being investigated at present. However, because of the introduction of better standards and better regulation, we should acknowledge that we are not encountering many new abuse situations. Most of the cases being investigated relate to historical abuse. In that respect, we should give credit to the commission and to the many local authorities for the work that has been undertaken in ensuring that staff are properly trained; and, indeed, for taking the interests of children to heart.

Therefore, although I do not wish to oppose the noble Baroness, Lady David, with all her experience in relation to this subject, I hope that we shall not lose what we already have as a result of the debate.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I thank the noble Baroness, Lady David, for giving us the opportunity to raise these matters tonight. As someone who is heartily sick of sitting through the proceedings on Bills with regulation after regulation being mentioned, it is good for this House to sit down once in a while and consider the kind of measures to which we are committing ourselves in primary legislation, and to subject such measures to thorough scrutiny.

I should like to follow the noble Baroness, Lady Howarth, and talk about the structural reorganisational issues. The existence of the National Care Standards Commission in its present form was short-lived; indeed, it existed for a fortnight only and will soon become part of another investigatory body. I am sorry, such titles change so quickly these days that it is quite difficult to get one's head around them.

We need to consider these issues in the following context. There is a very great fear on the part of people who look into such issues that the resources devoted to this post—not the individual who is currently undertaking such duties—will be too stretched. That fear was outlined very graphically by the noble Baroness, Lady David. A limited role within a structure that is not perfect and is in flux seems to me to be a matter about which we should be most concerned.

We need not detain ourselves too long on the argument that Wales has a far more superior regulatory framework that that which applies to England. However, there are questions that need to be answered by the Minister. It is quite evident that children's services and child protection work, and, indeed, the whole area of listening to children who are in vulnerable positions, will be subject to a great deal of review over the course of the next year. We all know the reasons behind that move. In that context, can the Minster say whether the Government will consider the work of the Children's Rights Director in parallel with the work of the Children's Commissioner for Wales? At some stage in the near future, will it be possible for this House to consider the output of the two roles in order to draw a direct comparison? If, as a result of that consideration, it turns out that the Welsh framework is superior, will we have the opportunity to build upon the very valuable work that will be carried out by the holder of this post in the intervening period?

That is all that I particularly wish to say at this point, other than to wish the present occupier of the role all the very best in what I believe will be quite difficult circumstances. I should also like to offer my support to the noble Baroness, Lady David, for what I consider to be a superior framework for looking after the interests of vulnerable children that will enable them to speak for themselves.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I congratulate the noble Baroness, Lady David, on raising this important matter and thank her for giving me the chance to ask the Minister a question. England is bigger, more complicated and has more paedophiles. Why a commissioner for Wales but not for England? I hope that the Minister will do something about that and correct it.

Lots of hidden things are going on about which we do not know and children cannot say what is happening. That includes children in boarding schools. I know that there are problems in boarding schools and people who want to abuse children have a clever way of getting in there and getting a job. I therefore hope that the Minister will do all that he can to help children and to give some clout to the role.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative 8:00 pm, 20th June 2002

My Lords, the House is grateful to the noble Baroness, Lady David, for ensuring that we debate this important issue. That gives me the opportunity to ask the Minister some questions. Of course, we on these Benches agree with the noble Baroness that those vulnerable children need special protection.

The Department of Health held a three-month consultation on the draft regulations—this statutory instrument—earlier this year. How many responses were received? How do the draft regulations differ from those before us today, and why have those changes been made?

In April, the Secretary of State announced that the National Care Standards Commission is to be taken over by two new bodies, the commission for healthcare audit and inspection and the commission for social care inspection. As the NCSC will shortly no longer exist in its current format, will that have any implications for the regulations? Will the changes to the National Care Standards Commission require primary legislation? When does the Minister anticipate that those changes will take place? How many staff will work in the Children's Rights Director's office, and what will be the budget? Regulations can be effective only if they are implemented.

According to the Explanatory Notes, the director is to be appointed by the National Care Standards Commission and will be a member of the NCSC's staff. However, many functions of the director as detailed in the SI require him to report back to the NCSC. For instance, Regulation 3(1)(m) requires the director to report to the commission about the availability and quality of regulated children's services. Obviously, the aim should not be for the director to report back to his own office within the NCSC. Are the regulations clear enough to ensure that the work of the Children's Right's Director is reported back to a different appropriate authority within the NCSC?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I am grateful to my noble friend Lady David for allowing us to debate the regulations and to revisit some of the important and interesting matters that some of us debated during the passage of the Care Standards Act 2000. The creation of the Children's Rights Director was an important measure that we agreed as part of setting up the National Care Standards Commission. The director is able to act as a powerful champion for some of the most vulnerable children in our country. Mr Roger Morgan, who has been appointed to the post, is already working hard to establish that important new role. The regulations enable the Children's Rights Director to perform that role in the most effective way possible.

We consulted on the regulation and, in answer to the noble Lord, Lord Astor, we received 40 responses, including responses from voluntary organisations providing services to children, social services departments and children's rights organisations. The changes that we have made are mainly drafting changes; there are no changes of substance from the draft regulations. But that in itself does not detract from the benefit of holding the consultation.

As the noble Lord, Lord Astor, suggested, the Children's Rights Director is a specialist director at the headquarters of the National Care Standards Commission and reports to the chief executive of the commission. The scope of the Children's Rights Director ranges across all the different constituencies of children receiving services regulated under the Care Standards Act 2000. As the noble Baroness, Lady Masham, suggested, that covers a wide range of services—residential and nursing homes, children's homes, private and voluntary hospitals and clinics, fostering agencies, independent medical agencies, boarding schools and local authority adopting and fostering services—provided to support and help vulnerable children.

The Children's Rights Director's role is aimed at responding to those children who are most in need of safeguarding. It is about listening to children and helping to protect them from harm. The Children's Rights Director has a special role in ensuring that vulnerable children have a voice in all decisions that affect them.

In addition, the Children's Rights Director will ensure that the commission provides full and effective coverage of children's rights in its statutory responsibilities for regulated children's services. Any significant evidence relevant to the rights and safety of children gathered through the process of regulation and assessment will be reported to the commission and disseminated in order to help local authorities and other providers to improve the services and support offered to children.

Of course, I listened with a great deal of care and attention to the points raised by my noble friend. If she reads the regulations, she will comprehend the extensive range of responsiblities of the Children's Rights Director laid down, especially in Regulation 3. Regulation 3(1)(a)(i) provides that the director,

"safeguards and promotes the rights and welfare of children who are provided with regulated children's services".

Regulation 3(1)(a)(ii) provides that he,

"gives proper consideration to the views of children to whom regulated children's services are provided and to the views of the parents of such children".

Sub-paragraph (g) states:

"to ascertain . . . the views of children about regulated children's services provided to them . . . and to report such views to the Commission in so far as they are relevant to the discharge by the Commission of its functions".

Sub-paragraph (h) states:

"to monitor and review the effectiveness of the arrangements made by the providers of regulated children's services".

I draw the attention of the noble Lord, Lord Astor, to sub-paragraph (k), which states:

"to report to the Commission"— there is a clear responsibility of the director to report directly to the commission—

"and the Secretary of State".

That means that, even though that person is an employee of the National Care Standards Commission, not only is that office-holder named in statute and regulations are brought before your Lordships' House to set out that person's functions; he can report directly to the Secretary of State any significant evidence relating to the rights and welfare of children who are provided with regulated children's services. The powers set out in the regulations are substantial. They will be used to great effect by the occupant of that extremely responsible post.

My noble friend also raised an interesting point about whether the Children's Rights Director could require information to be provided. My understanding is that the commission itself can require information. I draw my noble friend's attention to Clause 31(1) of the Care Standards Act 2000. Accordingly, the Children's Rights Director can require information via the commission's capacity to do so.

As the noble Baroness, Lady Howarth of Breckland, suggested, if we were to annul the regulations and render them unusable, the functions of the Children's Rights Director would not be set out. A postholder would still be in place, but only as an employee and not as a special champion for children at the National Care Standards Commission.

Several important points were raised. I listened with great interest to the noble Baroness, Lady Barker, who asked specifically about the impact of creating the new inspectorate. I well recognise that it is a significant change, which comes at a time when the National Care Standards Commission is bedding down, appointing staff and developing its functions. I recognise that we are asking a great deal of the board and the staff of the commission, and I want to pay tribute to them for the enormous dedication and motivation that they bring to their task and for the support that they are giving to the changes. It has been remarkable, and the Government recognise that.

Creating a single, comprehensive inspectorate for social care that brings together the inspection functions of the Social Services Inspectorate and the National Care Standards Commission will produce a rigorous inspection system, in which the public interest will be safeguarded and enhanced.

The noble Lord, Lord Astor of Hever, asked how the role of the Children's Rights Director would fit into the new arrangements. I cannot answer that question directly; we are still considering the matter. We must consider also the implications of the transfer of some of the functions of the National Care Standards Commission to the new Commission for Healthcare Audit and Inspection. We will consider the matter carefully. We are, of course, considering the legislative implications, but I know that the noble Lord will not expect me to go any further on that. He also raised the issue of budgets and staff. We must recognise that the National Care Standards Commission is still at an early stage of development. I will ask the commission to keep in touch with the noble Lord on those matters.

The issue of a children's commissioner overrides the specific questions that we are debating. My noble friend Lady David has raised the matter assiduously at every possible opportunity. I do not doubt the symbolism and importance of such a post to those who passionately argue for it. I would never underestimate the importance of that symbolism. However, we need to take a hard-headed approach and analyse exactly what a children's commissioner would do. How would the commissioner's responsibility compare with existing mechanisms? Ultimately, we must ask whether having a children's commissioner would actually add value. Would it simply duplicate good work already being done? Would it dash the expectations, which may be impossibly high, of those who argue for such a post?

I hope that I can respond positively to the noble Baroness, Lady Barker, and say that I would welcome further debate along those lines. We should base our debate on consideration of experience in Wales. We are examining with great interest the work of the Welsh Children's Commissioner and the discussions taking place in the other devolved administrations. I would point out, however, that the commissioners being discussed in the other devolved administrations differ from each other with regard to the responsibilities that they are to be given. I agree with the point raised by the noble Baroness, Lady Barker. I would welcome a dispassionate analysis of the potential added value of having a children's commissioner, together with an analysis of what the Government seek to do to ensure that the voice of the child is heard.

It is not the time for me to go into extensive detail about the initiatives that the Government have taken. We have established a Children and Young People's Unit across government; we have established a Cabinet Committee on Children and Young People's Services; there is a Children's Rights Director; and, in the Department of Health, we have appointed a national clinical director for children, and we are working on a national service framework for children's services. We are also considering the potential reform of the ombudsman structure in England to allow children greater access to the system, and we are developing advocacy services for children. The measures that the Government are taking comprise a very powerful package that truly puts the interests of children at the centre of our thinking.

We will surely have further debate on the question of a children's commissioner. In that debate, those who argue in favour of having such a post should compare what a children's commissioner might do with what is already being done, rather than simply saying that, in Wales—and, perhaps, in the other devolved administrations—there is a Children's Commissioner and that that is, per se, a good thing, while what is happening in England is a bad thing. We must have a debate about the added value of what is being suggested. I say that because it would be all too easy for the Government to say that we will have a children's commissioner, although that commissioner will either duplicate or be peripheral to what is already being done. One of the advantages of the measures that we have put in place is that the Children's Rights Director is part of the National Care Standards Commission, so he or she will be informed by much of the activity of the commission in exercising regulatory authority.

I have spoken at some length on the matter. I do not want noble Lords to think that I am here to dismiss out of hand the possibility of having a children's commissioner. I recognise why there are those who are attracted to that proposal. Equally, however, I must defend the Government's programme. We have introduced several measures to promote the rights of children and their right to be heard. The Children's Rights Director is an important office that will bring a great deal of help and advice to children and children's services. Therefore I hope that my noble friend will consider withdrawing her Motion. I hope that she considers that I have listened with a great deal of attention to what she said. The Children's Rights Director has considerable powers and will use them to great effect.

Photo of Baroness David Baroness David Labour

My Lords, I thank all noble Lords who have spoken for their support and for the knowledge that they have brought to this short debate. I am particularly grateful to the Minister for his very careful response, which was more than I expected. He made a powerful speech. The Government have done a great deal for children and I am proud of that. I congratulate them on that.

I respect the noble Baroness, Lady Howarth, and I have a great respect for her knowledge. She, of course, has connections with the commission and may have a slightly biased view, but I respect what she said.

I did not intend to press this matter to a Division. I am reassured by what the Minister said and I am grateful for that. Perhaps he might give a guarantee that there will be a formal review, involving consultations with children in care and those organisations representing them, of the effectiveness of the Children's Rights Director and the adequacy of the regulations within a year. That would be very interesting. We are working in the unknown—we do not know quite what will happen—and it would be very interesting if there was some kind of review in a year's time to discover whether the regulations have worked and whether they have been as effective as the Minister clearly thinks they will be.

The Minister said that the changes in the regulations were mostly to the drafting. Knowing what a lot of work went into the consultations, that is rather surprising. People sent in their comments and it would seem that they were treated rather abruptly—perhaps not slightingly—and without the attention that might have been expected.

We have had an interesting debate. I am glad that we have had it because I have certainly learnt from it. I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.