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My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Ashton of Upholland.)
The Green Paper, Every Child Matters, spelled out the Government's commitment to ensuring that children's voices and experiences are heard and that they are involved in the design and delivery of services. This aim has received widespread support and it is something that features in Article 12 of the UN Convention on the Rights of the Child. However, there is a distinct lack of emphasis on ensuring that the same aim is embedded in the structure for children's services as proposed in the Bill. The only duty that the Bill establishes for involving children is placed with the commissioner in Part 1. One of the key problems highlighted by the Victoria Climbié inquiry was the lack of any focus on ensuring that she was spoken to or that her views were sought and recorded. The Bill before us needs to be unambiguous on the point.
The law is currently inconsistent about listening to children. A critical gap remains in relation to social services assessments of children's needs under Sections 17 and 47 of the Children Act. I do not propose to pre-empt the remarks of the noble Baroness, Lady Walmsley, whose name precedes mine at the top of Amendment No. 132, but let me simply say that the addition that she has proposed to Section 17 of the Act is one that I wholeheartedly believe to be necessary. It is surely right that whenever a local authority carries out an assessment of a child who is perceived to be in need, the child's views of what is happening to him or her and his or her perspective should form an integral part of the ensuing report. That duty is not in the Bill at the moment and, in keeping with much comparable legislation relating to children, notably the Adoption Act, it really should be. I beg to move.
I shall speak to Amendments Nos. 132 and 133 in this group. I thank the noble Earl, Lord Howe, for the support that he has given before I have even started. Amendment No. 132 amends Section 17 of the Children Act 1989 so that, before making any decisions about the provision of any service to a child, the wishes and feelings of the child should be taken into account, they should be recorded and, if that is not possible, the reason why it was not possible should also be recorded. The amendment makes clear in statute that a child's wishes and feelings should be an integral part of the local authority's assessment of the child's needs. Of course, in doing so, better quality decision-making would occur.
Amendment No. 133 makes the same requirements for all child protection investigations under Section 47 of the Children Act 1989. Despite the fact that this Bill emerges out of the tragic case of Victoria Climbié, to whom nobody listened, it does not include any provision for strengthening the child's individual voice, except as part of the strategic function of the Children's Commissioner. The Children's Rights Alliance for England and the Children's Society, which have urged these amendments upon us, believe that there is an inconsistency in the law in relation to listening to children that must be addressed. On the day that the Children Bill was published, the Minister for children, Margaret Hodge, said of Victoria Climbié:
"Nobody talked to her, nobody asked her how she felt, nobody asked her what she wanted. That must never happen again".
Those words make the Minister's intention very clear.
The intention is there, so why do we need the amendment? The Green Paper, Every Child Matters, spells out the Government's commitment, but the law is currently inconsistent about listening to vulnerable children and critical gaps remain in relation to social services assessments of children's needs under Section 17 and in relation to child abuse inquiries under Section 47 of the Children Act. Looked-after children, children being considered for adoption and children involved in court proceedings all have a legal right to be consulted, but a child who is the subject of a child protection inquiry or of a child in need assessment has no legal right to be consulted.
The DfES has stated that this is a matter for guidance. Certainly, the statutory guidance, Working Together to Safeguard Children, and other guidance such as A Framework for the Assessment of Children in Need and their Families and the new Children's Services guidance What To Do If You're Worried A Child Is Being Abused emphasise the importance of seeing and communicating with children. But experience has shown that without the statutory duty the response across the country will be inconsistent. There is much practice evidence that children and young people are not always being consulted. This is particularly so in respect of certain groups of children, including the very young and disabled children.
Victoria Climbié's brutal death is testimony to the vulnerability of children, as are other recent high-profile cases. Six year-old Lauren Wright died in May 2000 with 60 bruises on her body. Her step-mother and father were convicted of manslaughter and wilful neglect. Four year-old John Smith was killed in Brighton and Hove in December 2000 by his pre-adoptive parents. He died with 54 bruises on his body and three adult bite marks. Social workers had visited his home on 20 separate occasions. They believed his foster parents when they said that his injuries were self-inflicted. Nobody talked to John. Four of the Victoria Climbié inquiry's recommendations relate to strengthening the child's voice in safeguarding.
In February 2003, the Government issued NHS organisations and local councils with a self-audit checklist to assess the implementation of the urgent recommendations of the Victoria Climbié report. All four recommendations relating to the child's voice were included in that audit and that is well and good. In October 2003, the Commission for Health Improvement, Her Majesty's Inspectorate of Constabulary and the Social Services Inspectorate reported on progress. In relation to the child's voice, the three inspectorates concluded that:
"Some councils do not include children's views and wishes in assessments as a matter of course".
In April 2004, the report was published of the case review held in order to learn the lessons from the fatal shooting in September 2003 of seven year-old Toni-Ann Byfield. It stated:
"The overriding impression . . . is that the primary focus of professional work was on the assessment of Mr Byfield's parental capacity . . . [and] inadequate attention was paid to the full and necessary assessment of Toni-Ann's needs".
It goes on to state:
"it is difficult to see how, given the very limited number of occasions made available when they were actually in a position to have a direct and private conversation with Toni-Ann, they could make a full and sensitive assessment of her needs and wishes".
The Adoption and Children Act 2002 introduced a new duty on adoption agencies to ascertain the child's wishes and feelings. From the start of that Bill's parliamentary passage, the Government were committed to include in primary legislation a requirement to have regard to the child's wishes and feelings. So why is it not in this Bill too? I hope that it will be and I hope that these amendments will be viewed with interest, at the very least, by the Government and by your Lordships' House.
I shall be very brief. Having tabled similar amendments to the Adoption Act, I support all these amendments in principle. I cannot conceive of what objection to them could be raised by the Government. I shall listen with attention.
I must apologise to the Minister for not being in constant attendance on this Bill. There have been three other Bills on which I have been engaged. I shall attend for Clause 8, which goes to the heart of this matter.
I rise to support this amendment for a particular reason. I believe that the provisions that are suggested in the noble Baroness's amendments would be the course of action taken by any good quality, well trained social worker, if he had time to do so. If I may, I suggest that the problem is that so many social services departments are so grossly understaffed and also often undertrained. I think that it is only by having a statutory obligation that we shall force local authorities, and if necessary the Government, to provide the funds needed to do the job properly.
I rise to support the comments of my noble friend. We depend on very many unqualified social workers. With social services so overstretched in many areas, and with the worries about extremely vulnerable children, it seems sensible to place this provision on the face of the legislation rather than in guidance.
I am grateful to all noble Lords who have spoken in this short debate. I say to the noble Baroness that we have listened with more than interest to this set of amendments; we have listened with what I hope is great sympathy and understanding. I hope to be able to show how well the guidance is working and to make the case for how we have responded in other ways to the findings of the Climbié report and to show that, in terms of professional practice and principle, this is better done in guidance and process. If I may, I shall work through those arguments in speaking to the amendments.
I think we should bear in mind that the burden of what the noble Lord, Lord Laming, was saying in very many respects in his report was that what is required is for the professionals to do a better job and to do the best job that they can possibly do. That meant following the guidance that was there at the time. So although we have some sympathy, we also have some very important and effective tools as well. The Children Act 1989 enshrines the principle that before decisions are taken regarding the welfare of children, children's wishes and feelings are sought in terms of both court decisions and statutory guidance.
On Amendments Nos. 126 and 206, I begin by assuring noble Lords that both this Government and the Assembly government in Wales will ensure that the guidance we make under Clauses 7 and 22 reaffirms the importance of listening to and taking account of the views of children. I have used the word "reaffirms" very specifically.
The guidance will certainly include good practice and cross-refer to other legislation and regulations— through, for example, the Government's objectives for children's social services published in 1999—and, in particular to objective 8, which relates to the active involvement of children and families as the users and carers in planning the services they use and the decisions that affect them.
On Amendments Nos. 126 and 206—I shall develop my argument on the other amendments in due course—it is important to remember that children's wishes can quite often conflict with their safeguarding needs. One of our problems with the amendment is that we need to be absolutely sure that the agencies, while they always follow the very sensible and sensitive statutory guidance available, are always clear about where the child's paramount interest lies. In making decisions, safeguarding must remain the priority. We fear that introducing a dual-edged duty could slightly confuse that. We are slightly concerned about that.
Amendment No. 132 would create a completely new clause that would amend the Children Act 1989 so that an authority was required to take "reasonably practicable" steps to ascertain a child's wishes and feelings, and to record in writing their wishes and feelings, or to record why that has not been possible. Placing the child at the centre of such considerations—listening to the voice and views of children—is absolutely consistent with everything we are trying to do in the Bill.
The noble Baroness and the noble Earl have already referred to the way in which we are trying to respond to the findings of the Victoria Climbié report. That report was extremely critical of professionals who were responsible for her but who never spoke to her in her own language—French. She was never seen or communicated with. Therefore, she had no opportunity to tell anyone her own story. Those were failures in practice and it is those failures that we wish to address.
As I said, the Children Act provides for children who may be considered in need to be assessed under Section 17. Before providing any services that follow from such an assessment, the authority is required to make an assessment of whether or not that child is "in need" in the sense of the Act and the impact of that status on their health and development. Surely those services should not be provided without the local authority social services building up sufficient information about a child's circumstances.
It is a tragic irony that while Victoria Climbié was in such peril the Government were already working up what became the 2000 framework for assessment to which the noble Baroness referred. That guidance is mandatory for local authority social services, other than in exceptional circumstances. I should like to quote very briefly from the guidance because it has stood the test of time and there is evidence, to which I shall refer, about how well it is working.
The framework makes clear that the significance of seeing and observing a child cannot be overstated; that communication with children is an essential part of assessment; and that children are to be seen, observed and communicated with in their preferred language. It also makes clear that at a turning point in their lives children are enabled to express their wishes and feelings, to make sense of their circumstances and to contribute to decisions that affect them; and that throughout an assessment of the delivery system account should always be taken of their wishes and feelings. The guidance very deliberately sets out very clear steps.
In 2003, in response to the joint chief inspectors' report Safeguarding Children and the Climbié report, best practice guidance—to which the noble Baroness referred—on what to do if you are worried about a child was issued to all professionals. I understand that more than 3 million copies have been distributed. There is a clear instruction on seeing and communicating with children, especially if they have language problems. We have also commissioned Dr David Jones to write Communicating with Vulnerable Children to assist practitioners in this aspect of their work. Had that guidance and the enhanced guidance we have put out been in place earlier, Victoria Climbié might have been better protected.
The amendment may have been designed by analogy to sit alongside Section 1 of the 1989 Act, which does indeed require a child's wishes and feelings to be ascertained before courts' determinations are made in family proceedings. I suggest to the noble Baroness that the analogy does not really stand up. Section 1 deals with the deliberation of the courts in family proceedings. Section 17 deals with children who are potentially in need. That is the general duty on local authorities to look after children. Under Section 17, local authorities may well be engaged in working with loving families who temporarily cannot cope—who probably constitute the vast majority of the 380,000 children in need. Those families are intact and do not need the services of the Section 47 child protection services. As I suggested, the existing framework provides a very full process to be followed in those cases.
The noble Baroness referred also to recording practice. We have to admit that concerns about poor quality recording have been a feature not only of a number of Social Services Inspectorate reports but were a key feature of the events addressed by the noble Lord, Lord Laming, leading up to the death of Victoria. Alongside the assessment framework, we have also published records for completion after an initial and a core assessment. Those records include a section in which the child's views have to be recorded.
We also have to admit that there is no room for complacency. Research commissioned by the Government also showed that young people's views were not always recorded. That does not mean that their views were not sought but that they were not recorded.
We have had to address that issue and three specific steps have been taken. First, additional materials to assist direct work with children and young people, including disabled children, have been developed and issued. Secondly, new resource materials have been commissioned from Barnardo's to support social workers and will be published shortly. In 2003 we published a training package to assist social workers to improve the quality of the recording. Thirdly, the assessment framework continues to be monitored through the performance assessment monitoring process. That responsibility has just passed to the Commission for Social Care Inspection and will be an important part of its work.
I ask the noble Baroness a question of principle. We hear so much about statutory guidance, packages and secondary legislation, but surely the issue of principle is whether this measure should be on the face of the Bill, whether the extant regime has operated satisfactorily—I say no more to answer that question—and whether, as I think the noble Lord, Lord Northbourne, suggested, this and relevant provisions should be produced in the form of primary legislation. Is that not the issue?
It is the issue that is addressed by the amendments. Principles can be carried very powerfully in secondary legislation but the Government's case is that because of the weight of practice and the need to give guidance that can be implemented and monitored properly, it is better to have the measure in statutory guidance rather than on the face of the Bill, which may not in itself be sufficient. We and the noble Lord—I have heard him defend children's rights on many occasions in this House—want to see better practice. We believe that can be achieved through properly implemented statutory guidance.
There is another problem associated with the notion of recording. There is an argument about Section 17 in relation to what I said about functional families. One does not always want a very heavy intervention. Often it is extremely important that something happens rapidly. It may simply be that the child is referred for a school clothing grant, or that the family is referred to HomeStart or that someone is quickly brought in to deal with a particular problem. That has to happen within seven days. We believe that the amendment, with its requirement to make specific records before any and every decision, may be a recipe for delay and additional bureaucracy. It could deflect help when it is most needed and introduce a new bone of contention into difficult situations. It could increase the risk that children may come under more pressure than at present to express the wishes of people other than themselves.
I have asked the Committee to have confidence in the process of guidance for two reasons. First, we know that the assessment framework is having a very positive effect on practice. We commissioned research that was published this year which found that the use of the assessment framework had increased family involvement in the process, consultation with the family and recording the views of family members. We believe that that is very positive. Secondly, over the past four years there have been 250,000 initial assessments and 50,000 core assessments. All the evidence suggests to us that the participation of children and young people in that period has increased and is working well. It will certainly remain an important feature.
I hope that in the light of what I have said noble Lords will allow us to continue to deal with this matter through flexible guidance, which has the force of statute behind it, and through encouragement of good practice.
I turn to Amendment No. 133. This would amend Section 47 of the Children Act 1989 in the same way as Amendment No. 132 would amend Section 17. In so doing it would also remove the opportunity for local authorities not to seek access to a child if they are satisfied that they already have sufficient information with respect to him or her. It would require local authorities, in carrying out Section 47 inquiries—that is, inquiries into whether they need to take action to safeguard or promote a child's welfare—to take account of the child's wishes and feelings, or to record why they have not been able to do so.
Further, guidance in Working Together to Safeguard Children on making Section 47 inquiries, the subject of this amendment, makes clear that,
"enquiries should always involve separate interviews with the child who is the subject of concern".
That guidance, too, is issued under Section 7 of the Local Authority Social Services Act 1970.
Of course, there are times when it is not possible to ascertain the wishes of a child. For example, child protection conferences can be held about unborn children, who are clearly unable to express their wishes. However, guidance makes clear that the child should always be seen, and their views and wishes ascertained in the light of their age and understanding.
There are also times when a Section 47 inquiry is started quite appropriately but during the early stages of the inquiry new information comes to light which means that the inquiry should be ended, or information is obtained about the child from another source which means that it would not be reasonable to pursue seeing the child as part of the Section 47 inquiries. For that reason it is important that local authorities retain the discretion to complete a Section 47 inquiry without having seen the child. I am pointing out the difficulties that the amendment would create in that respect. The child will, however, have been seen during the initial assessment which will have preceded the decision to initiate Section 47 inquiries. However, flexibility is built into that.
I hope I have convinced noble Lords that we are fully sympathetic to the arguments and that we are intent on ensuring that the wishes and feelings of children throughout the entire process of assessment, protection and care are implicit in the entire range of practice that we will enhance, and have been enhancing, since the publication of the Victoria Climbié report. I hope that on that basis the amendment will be withdrawn.
Although I understand the points that the noble Baroness made I am still a little puzzled why it is not possible, or is not thought desirable, to have the same points on the face of the Bill as in guidance. To my mind that would reinforce the issue, which we all wish to see reinforced because of the problems that have occurred over time. With the greatest respect, it has not been all that long since the Climbié case occurred. Although, obviously, practice has improved, it is not yet sufficiently improved for us to be other than still very worried about it. As there seems to me in both Amendments Nos. 132 and 133 to be sufficient situations where it is not appropriate to consult the child due to his or her age or whatever, I should be most grateful if the noble Baroness could further explain why it is not possible to have the same points in the Bill as in guidance to reinforce the force of the argument.
The Government often have to say that we think it is better to do something in a different way even when that does not meet noble Lords' wishes. Part of the problem with putting measures in primary legislation is that they are fixed and are difficult to change. It is much easier to change something that is less fixed. For the professionals in the front line who have to improve their practice, it is better to have measures that you can change, update and amend. Legislation involves definitions as opposed to feelings. I am afraid that is the only explanation that I have. I hope that I have convinced the noble Baroness of the validity of my arguments although I understand the points that she made.
The Minister did the best job that it is possible to imagine in trying to persuade us of the strength of her case, but I am not sure that I am persuaded. She said that the guidance was working. I took that as, if you like, the bedrock of her argument. That statement is at best questionable. It was not the conclusion reached by CHI, the Social Services Inspectorate and HM Inspectorate of Constabulary last October when reviewing the self-audit of local authorities and the NHS. I quote a sentence from their report:
"Some councils do not include children's views and wishes in assessments as a matter of course".
That must be of concern.
We currently have a situation in which looked-after children, children being considered for adoption and children involved in court proceedings, all have a legal right to be consulted. But a child who is subjected to a child protection inquiry or a child in need assessment has no such legal right. I do not believe that can be defended. Statutory guidance emphasises the importance of seeing and communicating with children in both those contexts, as the noble Baroness rightly said. But experience seems to show that without a statutory duty the response is always going to be patchy. That cannot be satisfactory. The Minister spoke of the difficulty of giving local authorities a dual-edged duty, yet she conceded fully, I believe, that listening to children was of fundamental importance in all cases and was rightly part of the guidance which has the force of statute.
So I am not quite sure that I accept the intellectual case against my amendment and that of the noble Baroness, Lady Walmsley. I agree that by its very nature guidance is a flexible instrument, but it is not apparent to me why flexibility is needed when the issue itself is pretty clear cut. I agree entirely with what the noble Baroness, Lady Howe, said in that connection. It would be possible to tweak the wording of my amendment or that of the noble Baroness, to allow for exceptional cases.
This is a matter on which we shall have to reflect further between now and the next stage of the Bill. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 127:
Page 6, line 5, at end insert—
"( ) Each person and body to whom this section applies must in discharging their duty under this section have due regard to—
(a) the need, where opportunities for disabled children are not as good as those for other children, to promote equality of opportunity between disabled children and other children by improving opportunities for disabled children; and
(b) the need to promote equality of opportunity between—
(i) children of different racial groups, religions or beliefs, family status or sexual orientation; and
(ii) between boys and girls generally."
This amendment would impose a duty on all agencies working with children and young people locally to have a positive focus on eliminating discrimination and delivering equality of opportunity as part of their duty to have regard to safeguarding and promoting the well-being of children in their care or with whom they have contact.
Many children will not benefit from general measures to promote well-being unless full account is taken of their own specific barriers relating to disability, ethnic background, religion, gender, sexual orientation or family status. Equality must be embedded in the new duty if it is to have any impact on such inequalities. That is an argument which we have made in a number of small debates on amendments on earlier days in Committee.
Such a duty is particularly essential in the light of recent research by the NSPCC and the National Working Group on Child Protection and Disability, which reveals that disabled children are more likely than other children to become victims of physical or sexual abuse and are less likely to get support from child protection services. Perhaps it is because their voice is not heard quite so much.
Disabled children are almost four times more likely to be sexually, physically and emotionally abused and neglected than non-disabled children, according to the NSPCC report—I should declare an interest in that organisation—"It Doesn't Happen to Disabled Children": Child Protection and Disabled Children, which was published last year. Despite that, the report states that there is a common belief that disabled children are not abused. It also reveals widespread failure to protect disabled children from abuse or to take action when abuse is even suspected.
Sir William Utting, the former chief inspector of the Social Services Inspectorate, in his foreword to the report said,
"We should long be past the point of a 'one-size-fits-all' system of child protection. Disabled children are particularly vulnerable to abuse. Additional measures are therefore needed to prevent, investigate and remedy incidents of abuse".
The Disability Rights Commission, which is backing this amendment, also argues that local safeguarding children boards should also have similar equality provisions written into their functions under the Bill and regulations under Clause 9 should address the need to consult and involve local disability groups who represent the needs of those children.
I hope that the Government will accept this amendment. It is very important that we have that equality written into the Bill. I beg to move.
I do not really believe that it is necessary to differentiate between learning disability and disability because both are disabilities. One is talking about children with disabilities. I am delighted that my noble friend Lord Northbourne has suggested that learning disabilities should be in a separate category. But in the context of this amendment I do not believe that it is necessary.
Although I heartily support this amendment, I disagree with some of the wording, such as:
"where opportunities for disabled children are not as good as those for other children".
That is totally unnecessary. It is a redundancy or a pleonasm, according to my school-day memories. The amendment should read,
"the need to promote equality of opportunity between disabled children and other children by improving opportunities for disabled children".
That is a straightforward statement and order. If one puts in,
"where opportunities for disabled children are not as good as those for other children", one is allowing differentials, street by street, house by house and school by school. The opportunities can be different all the time. We want equality of opportunity. I believe that learning disability is perfectly well included in "disabled children".
I entirely agree with the noble Lord, Lord Rix, over this matter. There is a danger in specifying learning disabilities because once one does that one tends to exclude everything which is not specified.
I support this amendment. The contributions made by other Members of the Committee have been very helpful, not least the discussion about learning disabilities. I agree that that should be contained within the whole issue of disability. I also support the point made by the noble Lord, Lord Rix, which improves the amendment. It is one of a stream of amendments. The noble Baroness, Lady Finlay of Llandaff, also supports the amendments but she cannot be here today.
The whole aim is to highlight the disadvantages that are suffered by children in all the groups and, if I may return to some of my roots, the differences between the disabilities that can occur between men and women and boys and girls. It can go both ways. Boys can be disabled in many ways by not having the same opportunities as girls and vice versa. I also hope that there will be specific recognition on the face of the Bill wherever it is necessary that this is to be of paramount importance.
There is little that I wish to add to the case so admirably put by other Members of the Committee. Perhaps I may hark back briefly to the previous group of amendments.
As has been said, we know that disabled children and young people are particularly vulnerable to abuse, but we also know that abuse of disabled children has been traditionally under-reported and there are quite a few case studies to show that. I shall give brief details of one graphic example. In the recent report of the national working group on child protection and disability there is a case concerning life-threatening injuries to two young girls with severe cognitive impairment, in which it emerged that only two out of 60 health and social services professionals who had had contact with those girls had directly communicated with them and recorded their words and non-verbal responses.
So, indicators of abuse are sometimes difficult to disentangle from the effects of a child's impairment, but that should never deter us from trying to listen to the voices of all children and of disabled children in particular. While there is a risk that the Minister will stand up and say that that is yet another example of a special pleading for lists, or however one could describe it, there is a powerful case to be made for focusing on the vulnerability of disabled young people.
I do not think that children with disabilities or, indeed, disadvantaged children generally, could have a finer group of champions than those who have spoken in this debate. Of course we have sympathy with and commend the principle behind the amendments. I also think, with no small thanks to my noble friend Lady Ashton, that our policies for children with disabilities and special needs have been significantly advanced. I am afraid that the debate illustrates some of the difficulties with identifying groups of children in the Bill. It is a debate that we have already had in the course of the Bill and I entirely accept what the noble Earl, Lord Howe, said. I do not want particularly to revert to the curse of the list, but it is there, it is a problem and we know that disabled children are particularly vulnerable. It is well documented and the noble Lord has just given a strong example of people not taking care to find out in time what those children felt. It is a bad example of bad practice. However, the problem is that when we single out groups of children in the Bill or any other Bill, we exclude other children by implication. That is more dangerous and puts them in a more vulnerable position. That is part of the problem.
In our debate on the amendments tabled by the noble Baroness, Lady Howe, on disabled children, we have already referred to our record on attempting to prohibit discrimination on the grounds of race, gender and disability. I shall refer to a comment made by the noble Baroness which was that what we wished to see in the Bill was about changing cultures, styles of working practices, attitudes and professional relationships. That is what would make a permanent change; equality is not just about new laws. I wish to put on record that we have been so concerned about the vulnerability of disabled children to abuse, particularly their vulnerability if they cannot express themselves, that we gave specific guidance in Working Together to Safeguard Children and asked ACPCs to ensure that,
"local policies and procedures for safeguarding children meet the needs of disabled children".
In Framework for the Assessment of Children in Need and their Families there is specific reference to the needs of disabled children and what needs to be done. We are also funding the Council for Disabled Children to design a training resource on safeguarding disabled children for practitioners that extends and supports that. We continue to try to improve that. Next year, because we know that high family stress increases the risk of child abuse—and noble Lords will know that it is stressful to bring up children with disabilities for all sorts of reasons—we plan to introduce a performance indicator to encourage local authorities to increase the number of families with disabled children in their area who receive family support. That is extremely important.
Finally, the National Service Framework for Children, which we aim to publish later this year, will also help to ensure that disabled children are effectively safeguarded. That has brought together experts in the field in the working groups and it will introduce standards on disability and safeguarding. It will also promote the use and access by disabled children of equipment and technology to assist communication needs. All of this is about improving outcomes and I am sure that that is what noble Lords want.
To ensure that improvements are really taking effect, in their last report, the joint chief inspectors also recommended that all relevant inspectorates should ensure that appropriate inspection activity has been undertaken to safeguard children with disabilities. They have also agreed to strengthen the focus on disabled children for the next joint chief inspectors' review of safeguards. So we have some additional safeguards built into the process.
I wish to speak briefly about what we are doing about black and Asian children and young people, because the Home Office publication, Race Equality in Public Services, shows that we have taken the same approach. Again, the framework gives specific practice guidance on how to assess the needs of children in black and ethnic minority families, taking into account race and culture. Our Quality Protects programme is there to raise standards across the board with regard to those families. It aims to transform services and outcomes and has placed an increasing emphasis on ensuring high quality outcomes for black and minority ethnic children. Several demonstration projects on services are in that mode. Encouraging people to think and work in different ways is difficult, slow and is not as dramatic as putting something in the Bill. If we want permanent change that percolates down through the professions, we will have to deliver better outcomes by guidance in relation to Clause 7, which will be the most effective action that we can take.
I suggest, if the amendment is withdrawn or no Division is called, that in paragraph (a) of the amendment we look at the possibility of inserting the words "equality of opportunity", because, after all, that is what we are after. It is not just "welfare"—that means one thing. "Equality of opportunity" means something else and for disabled children it is vital, as it is for ethnic minorities and other groups. But, if one talks about "equal opportunities" and the process of "welfare and equal opportunities" for all children one achieves our aim without putting in a list.
The noble Lord is always ingenious and persuasive and we never turn a deaf ear to anything that he says. The duty of Clauses 7 and 22 of the Bill is not aimed at ensuring equality, it is about safeguarding and promoting the welfare of such children. However, the noble Lord has made a strong point.
I thank the Minister for her reply and I do not fail to acknowledge the many initiatives that the Government have taken to try to improve the lot of children with disabilities of all kinds. There are many noble Lords who support the principle behind the amendment, although we may play around with the wording before we get it absolutely right. I understand what the Minister has said about guidance and that is all very well if people follow it properly. But Bills are about principles and guidance is then supposed to fill in the details and help people to implement the legislation properly. That principle of equality of opportunity is not there in the Bill. I agree with the noble Lord, Lord Rix, and "equality of opportunity" is there in paragraph (b) of the amendment. That is what we seek for all children.
So I shall withdraw the amendment for the moment, but perhaps we can get together and come up with wording that can command even wider support and that may possibly even be accepted by the Government in terms of the principle of equality of opportunity, which should be at the heart of the Bill. Perhaps we can avoid a list during that process and come to an agreement. We will undoubtedly be talking about the matter between now and Report. In the mean time, I beg leave to withdraw the amendment.
The purpose of the amendment is clear and it is of fundamental importance. It is to state on the face of the Bill that the duty to safeguard and promote the welfare and, crucially, the privacy of any child whose personal records have been part of the work of an employee of any of the organisations listed in Clause 7(1) is ongoing. It outlasts the person's employment with only one individual employer and it is therefore something on which a person can be taken to task at a subsequent stage. It is a key element of existing good practice that disclosure of information which has come to a practitioner during the course of his professional duties should remain confidential and that duty of confidence should outlast a person's employment with an employer.
Why the need to raise an amendment? This is, as Members of the Committee can imagine, a curtain-raiser for an interesting debate that we shall have for the rest of the afternoon. It is an acknowledgement that should the provisions of Clause 8 go ahead, it will be easier for such disclosures to take place. It will be easier for them to take place by accident, perhaps rather than by intent, but they will be no less grave for that. I suggest that it will be easier for individuals to disclose not only information which has come to them in the course of their duty, but may well have come to other professionals with whom they work.
It is not undue to suggest that if the potential for disclosure increases, the safeguards against disclosure ought also to be increased. And so, too, should the potential penalties. That is why we believe in reinforcing the point. I fully accept that the Minister will say that it is in existing good practice, but it is worth making it a duty—and one which transcends employers. Statistics indicate that there is now a tendency for individuals who work in social care to move from one employer to another. In London, children's social services departments in particular would collapse were it not for the high numbers of temporary and agency appointments. For those reasons, we believe that the duty should be underlined deliberately on the face of the Bill. I beg to move.
I support the amendment. I need not elaborate on the comments of the noble Baroness, Lady Barker, in detail. It is enough to say that there is a certain tension at the heart of the Bill. On the one hand, the Government have committed to the aim of the sharing of information as a means to offer protection to children and to promote their welfare. The method by which this is intended to be achieved is a database or databases. On the other hand, it is equally important, particularly in the context of any deployment of IT solutions, that this be balanced by appropriate safeguards of children's fundamental rights.
Of course, I acknowledge that in individual cases, this necessitates a delicate balancing act. The protection and welfare of children requires the considered judgment of those involved in their care and it could well mean that the sanctity of their rights is offended against. Nevertheless, particularly as they reach adulthood, it is essential that the position of their data and their rights in respect of it should be protected. We should avoid the impulse of compromising those rights simply because they are children. As currently drafted, the Bill ducks that issue.
I have no doubt that the Minister will proffer assurances along the lines that any databases that may be instigated on the back of the Clause 8 provision will be subject to the existing constraints of both the Human Rights and Data Protection Acts. Such an assurance would offer some comfort. None the less, instinct persuades me to believe that because we are touching on issues of such gravity and seriousness, the Bill would benefit from the amendment or something like it.
At the end of the day, I cannot help feeling that practitioners in the field should be under no illusion that one of their primary duties is to,
"safeguard and promote the welfare and privacy of any child" for whom they have responsibility. Hence my support for the amendment.
I should like to be able to support the amendment and I sympathize with its aim. However, to be honest, I find the wording a touch on the strange side. I understand and accept the point about privacy and the need to keep confidences sacrosanct indefinitely. That is a powerful point and I agree entirely with my noble friend Lord Northesk. But to require all former employees of a local authority or any other body to carry on promoting the welfare of children for ever and a day, even when they may have moved to other employment, emigrated or become so old that they cannot even promote their own welfare, is surely going a little far.
I can see the point that the noble Baroness and my noble friend are trying to address and, broadly speaking, I have sympathy with it. However, perhaps the wording needs adjustment.
I assure the noble Baroness that this is not a Front-Bench conspiracy, but the noble Earl has made my case most eloquently. We, too, have sympathy. How could one not have sympathy with the aim of requiring former employees to keep confidential information about children with whom they have come into contact in the course of their work? The noble Earl, Lord Northesk, made a powerful statement to that effect.
I do not want to anticipate Clause 8 and I am sure that we will spend a lot of time on all its aspects. However, like the noble Earl, Lord Howe, we believe that the amendment goes too far. Any employee would remain not only under a duty to keep confidential information about a child with whom he had worked but also under a duty to safeguard and promote the welfare of that child long after contact with the child had finished. And a former employee would remain under the same duty after he had left the employment of the agency even if he had emigrated or retired.
I have a surreal image of an elderly caseworker in a residential home feeling bound to telephone long-gone clients to make sure they were still wearing their motorcycle helmets. We must be careful about how we draft such amendments. If, in the worst case, the child died, it might even mean that the social worker could be sued for something over which he had no control. They are unintended consequences of the amendment, but we must take them into account.
Working to safeguard children is a difficult and demanding job. We all know that it is not easy to find social workers as the job places unique demands on people emotionally, intellectually and physically. I hope I can reassure the noble Earl, Lord Northesk, that social workers are under no illusions that they must keep information confidential and private. It is central to ethical practice and professional training, to which the noble Baroness paid tribute.
However, if the intention is simply to ensure that employees remain bound by a duty of confidence, as I am sure it is, I can reassure Members of the Committee that it is covered by the common law duty of confidence. That is owned by the worker and it would not cease simply because the employment had ended or the person was no longer involved with the case. Nor would that individual's professional code of conduct or practice cease to apply.
I am sure that Members of the Committee know more about the common law duty of confidence than I do, so I say simply that the circumstances in which a common law duty of confidence arises have been built up by case law over time. The duty arises where a person shares information with another in circumstances where it is reasonable to expect that the information will be kept confidential.
The courts have found a duty of confidence to exist where there is a special relationship between parties, such as patient and doctor, where a contract provides for such information to be kept confidential, or when an agency or government department collects and holds personal information. Disclosure can be justified only when the information is not confidential in nature, such as when the person to whom the duty is owed has expressly or implicitly authorised it, where there is an overriding public interest, or disclosure is required by a court order or other legal obligation.
In conclusion, for all the reasons that have been expressed, it is very important that individuals who work with children understand that they should not broadcast information about those children or young people, either during their employment or afterwards. It is for the employers of those staff to make clear to them their responsibilities bound by this common law duty. We have enhanced that in the booklet, to which I referred when speaking on an earlier amendment, What To Do If You're Worried A Child Is Being Abused, published last year. The booklet stressed very clearly that practitioners should treat as confidential all personal information they acquire or hold in the course of working with children or families. It states that they should take particular care with sensitive information. I hope the noble Baroness will accept that that is a reasonable argument and on that basis she will be able to withdraw the amendment.
This has been an extremely useful and helpful debate, not least because it flags up one of the problems that we shall confront all afternoon—safeguarding does not always consist solely of confidentiality. Indeed confidentiality in the role of social care can itself become a problem. Part of the inspiration for the amendment was the work of adoption agencies where the issue is not straightforward confidentiality. In fact, it may be an issue of disclosure at a later stage. I accept that there are defects in the wording of the amendment as the people concerned will no longer be children. However, they will be adults whose social welfare is, in part, dependent upon the work done with them when they were children.
I take some of the points raised by the Minister. This issue perhaps deserves the attention of a better wordsmith than I but I would say to the noble Baroness and to the noble Earl that the idea behind what I am suggesting is not far-fetched. In addition, I am grateful to the noble Earl, Lord Northesk, for his support for another theme of the afternoon—that is, if the Government wish Clause 8 to stand in anything like its current form, then issues about protection of information and levels of disclosure will have to be set out in far greater detail. I take what the noble Baroness says about ethical codes of behaviour which govern social care workers. I also understand what the noble Earl says about the ability of employers to continue to police that. I shall consider whether it is possible to bring forward a more elegant form of wording at a future stage. Meanwhile, I beg leave to withdraw the amendment.
moved Amendment No. 130:
Page 6, line 11, at end insert—
"( ) The following subsections shall be inserted at the end of section 17 of the Children Act 1989—
"(13) A local authority must at the request of—
(i) any child who is in need as defined in subsection (10), or
(ii) any person caring for, or who proposes to care for, such a child, or
(iii) any person who has parental responsibility for such a child, carry out an assessment of that person's needs for services appropriate to the child's needs.
(14) A local authority may, at the request of any other person, carry out an assessment of that person's needs for services in relation to a child in need.
(15) Where, as a result of an assessment, a local authority decide that a person has needs for services under this Part, the local authority must then decide whether to provide any such services to that person.
(16) If a local authority decide to provide any services to a person under this Part, the local authority must prepare a plan in accordance with which services are to be provided to the person and keep the plan under review.
(17) Regulations may make provision about assessments, preparing and reviewing plans, the provision of services in accordance with plans and reviewing the provision of services.""
We turn to what I suspect will be one of the most important groups of amendments of the afternoon. We have not yet reached Clause 8 but we are getting very close. The amendments are inspired by what we perceive to be some quite serious defects in Clause 8. Throughout the great many discussions there have been about this clause—the proposals on information sharing—a number of fundamental questions have been posed. The most fundamental was best expressed at Second Reading by the noble Baroness, Lady David, when she asked why, after 30 years, we cannot get professionals to talk to each other.
In Clause 8, the Government have for good reason chosen a particular way to answer that question. In my view, that is a flawed way. I believe that one of the biggest flaws underlying Clause 8 is that they see a database as a solution to communications between professionals. That is the problem which we are seeking to address.
One of the very valid points made by those who support Clause 8 is that there is a desire to see professionals from different disciplines—all of whom have a duty to safeguard the well-being of children—communicate long before the child concerned is in a moment of crisis. Quite rightly, there is an intention to try to organise services in such a way that when it becomes apparent that a problem is beginning with a child or a family, the services should swing into action.
I come to this Bill as someone who does not have a great deal of experience with children's services. One of the refreshing things I have been able to do from my standpoint of ignorance is to ask people, with no loading of the question, what it is that does not work now. For 30 years we have had all these different reviews of child deaths and we have come back to this same issue.
In the amendment before the Committee there is a solution to which the Government should have paid more attention before going down the route that they have chosen in Clause 8. The solution is Section 17 of the Children Act and the duty to assess. I am told by people who work in the field of children and family support that Section 17 and its current interpretation works exactly as the noble Baroness, Lady Andrews, said when she replied to an amendment a few moments ago. Section 17 sets out the general duty of an authority towards all children.
Indeed, there has been a decision in your Lordships' House to that effect in the case of R v Barnet BC and Lambeth BC. The amendment would change the interpretation of Section 17 so as to make a duty to assess all children who are in need; not children who are in such crisis that Section 47 applies, but Section 17. That covers children and families who are beginning to experience difficulties and for whom an intervention of some kind could well be a positive and preventive experience. In the context of severely overwhelmed social services departments—one need read only a couple of pages into the report of the noble Lord, Lord Laming, to understand exactly the state of a busy social services department—it is families who are not in crisis who do not receive at an early stage the support and help which would be most beneficial. That is the purport of the amendment.
Amendments Nos. 146 and 152 in this group deal with other issues. If you approach any of the organisations listed in Clause 7(1), you will find that their members talk at great length about the fact that any one of those agencies can come across children and families who have a problem. It may not be a problem that they can address because they do not have the wherewithal, the skills or whatever to do so. It would rightly be the duty of another agency to address the problem, but it cannot do so and cannot be compelled to do so.
I believe that, taken together—the duty to assess, the definition of a "child in need" as set out in Amendment No. 130, and the trigger for action set out our Amendments Nos. 146 and 152—the amendments provide a credible and robust framework upon which to try to achieve what the Government are, for good reason, seeking in their current Clause 8.
I believe that the amendments, taken together, are preferable to the current wording of the Bill because they provide a clear link with assessment, and assessment must have taken place because there has been a concern about a child. They contain a definition of the level of the problem and a definition of a child being in need, and they tie those to an action. Those three things together legitimise the sharing of information. As we shall repeat time and again this afternoon, no one in this Committee can have any doubt that the sharing of information by professionals is important and the key to proper childcare.
However, the terms under which information is disclosed and the details of those about whom information can be disclosed are a cause for huge practical concern. Therefore, Amendments Nos. 146 and 152 set out the basis upon which information may be disclosed and include the people about whom the information is being disclosed. Members of the Committee have already mentioned that in some of our discussions. It is accepted that, of children who are in severe need, about 80 per cent remain with their families. Such children will ideally, even if they are taken into care, return to their communities and families. Therefore, it is important that those who are involved with them are told of the information that is disclosed to different authorities.
For those reasons, we believe that the amendment clearly sets out a helpful change to Section 17 of the Children Act. It builds upon good practice and it comes as close as possible to setting out some of the key principles of practice that should govern the exchange of information about children between agencies. I beg to move.
I strongly support Amendment No. 130. I cannot better what the noble Baroness has already said but I want to add to it briefly. In my role as Opposition spokesman, I have frequent contact with families and child advocates who, in one way or another, have been caught up in the child protection system. As the Minister knows, I have a particular interest in parents who are falsely accused by social workers and the police of harming their children—an event, when it happens, that is every bit as damaging to the welfare of children as many forms of child abuse.
I shall not turn this into a debate about false allegations, but one frequent feature of the cases that are brought to me is that social workers, police and others have leapt to conclusions. Very often, they have done so on quite flimsy evidence and, sometimes, on no evidence at all. Once a suggestion is made that a parent is deliberately harming a child, the child protection ball starts rolling and is usually unstoppable. Time and again in such cases, when one asks whether a Section 17 assessment was carried out on the child before child protection proceedings commenced, the answer is no. The result is that it is only at a much later stage of the proceedings—sometimes when the case has gone as far as the family court—that the flimsiness of the local authority case becomes apparent and the truth of the situation is revealed.
The fact is that a whole range of medical conditions and developmental abnormalities in children are hard to diagnose. Conditions on the autistic spectrum, such as Asperger's syndrome, ADHD, CFS, ME, dyspraxia, depression and various genetic abnormalities, all require a specialist diagnosis before their presence can be established. But what the untrained eye often sees in a child with such a condition is someone who is behaving oddly or disruptively. When explanations are sought for that odd or disruptive behaviour, the possibility that the child may have a treatable organic condition and is therefore a child in need can often be overlooked in favour of the easier and less troublesome hypothesis that the child is a victim of bad or abusive parenting.
My firm belief is that many such situations could be avoided if only the duty to carry out a Section 17 assessment were made less avoidable. The amendment goes a long way towards achieving that. It does not require a local authority to provide services once an assessment has been carried out; that decision is left to the local authority—a principle which the Government insisted on preserving when we debated the adoption Act. But step one is to establish the needs of the child, and it is hoped that the rest will follow. I hope very much that the Minister will be receptive to this amendment or, failing that, to one very much like it.
I am grateful to the noble Baroness, Lady Barker, for heralding Clause 8, which I think she has successfully done twice. Although there is a logic to the grouping of these amendments, the noble Baroness will know that we are dealing with Clause 7, Clause 8 and then returning to Clause 7. Therefore, perhaps I may now deal with Amendment No. 130 and say something a little wider about Clause 8 as we move towards that.
The noble Baroness and the noble Earl rightly set out their own views on why they consider this matter to be important. I have met members of organisations who have kindly come to talk to me about this issue and about the impact of the amendment.
In thinking about that, we have had to consider whether embracing a much wider category of those who would be entitled to the assessment is the right way to move forward. That applies not only in terms of resources—I would not hesitate to say that there are resource implications, which is important when considering how best to support children and their families—but in terms of what that says about the way in which we seek to support families and children as effectively as we might. I say that having spent much of six to nine months working through how best to move forward in our special educational needs framework to ensure that children are considered on a continuum rather than having specific points at which children are regarded as having particular needs.
The difficulty I have with the principle behind what the noble Baroness seeks to achieve is that it would mean moving back to the idea that an assessment needs to be done in a particular set of circumstances, which need to be defined, rather than thinking about the needs of children on a continuum, which is my personal preference for thinking through how we provide support.
The amendment would mean that up to half a million referrals would be entitled to assessment. One has to consider whether that would be the best use of resources and time in order to support families, when it would be better to ensure that the resources are available more generally. So I have a difficulty with the amendment in terms of the way forward.
I completely understand the issues that the noble Earl Lord Howe, raises about leaping to conclusions and whether there is a better way to ensure that when there are concerns about children, rightly or wrongly those concerns are addressed appropriately, including recognising that on occasion there may be a false accusation.
I am not convinced that the way to deal with that is to move towards the implications of the amendment; that is, that there would always be an assessment. I think that many things need to be done. In supporting families and children, we have tried in all our work to move to a multi-agency approach, not least because when professionals work together it is much better for the family. First, the support is there in the round and secondly, one is not relying on a particular agency to assess a family's needs.
I do not suggest to the noble Earl that there is not more that can be done. However, I would argue that there is more to be done as regards training, support and advice than about moving to a formal statutory process which states that we will invest resources in assessment.
I have great sympathy with what the noble Earl seeks to achieve. However, I am not convinced that that would not result in skewing the resources rather than, as I have tried to indicate, having a continuum of support where children and families are supported from the beginning, and moving towards a preventive strategy rather than dealing with children when a crisis point is reached. From my experience of dealing with children with special educational needs, I am not sure that we would not end up moving away from that continuum of support.
It is also important to consider our move towards a common assessment framework. The focus of our work is to bring agencies together, to work with families and to assess the needs of children and their families in a common assessment framework. It is hoped that those children who are currently subject to 10 assessments would end up with one assessment, which would be carried out by agencies which would consider the needs of that child and its family. We hope also to end up with a better set of communications between agencies and with resources available through the Children's Trust to provide for the family and child.
I understand what the noble Baroness is trying to achieve. Having discussed this issue with various agencies, they are concerned to ensure that families receive the right kind of support. I have great sympathy with that ambition. However, I do not think that this would be the way to achieve it. That does not mean that we should not consider alternative ways to achieve what is sought by the noble Baroness and those who have supported the amendment.
I hope that we would be able to continue to rely on the flexibility and relevance of the guidance and continue to look to the common assessment framework and to a continuum of support for families and through our Children's Trust to get better at ensuring, first, that we have a good preventive strategy so that families are supported as soon as we see that there is a need, and secondly that resources are part of that continuum rather than coming in at a particular point. That would be my preference. On that basis I hope that the noble Baroness and the noble Earl will recognise our sincerity in wanting to support families but our belief that the amendment is not perhaps the way forward, with the proviso that we shall continue to discuss the matter with those who feel passionately about it, including the noble Earl and the noble Baroness.
I turn to Clause 8. The noble Baroness laid out clearly her concerns. Perhaps if I comment on what I hope to achieve today in our deliberations on Clause 8, that would set the framework, if noble Lords permit, from my perspective.
There is a consensus—the noble Baroness pointed to that and quoted my noble friend Lady David at Second Reading—and a real desire to ensure timely sharing of information between professionals. That is a crucial part of promoting the well-being and safety of all our children. Many times in the passage of the Bill noble Lords have referred to the tragic outcomes which have occurred when information is not shared. However, noble Lords who have been involved with child protection will know that time and again, even when cases do not reach the extreme situation where a child may be badly harmed or, even worse, die, professionals refer to the fact that if they had known certain information perhaps they might have acted differently. It is with that spirit that we propose this clause.
It is important that everyone understands that the provisions to establish and operate databases do not, by any stretch of the imagination, represent the totality of the Government's thinking on information sharing. Noble Lords have indicated and know from their own experiences that much of what needs to be done does not require new legislation so is not reflected in the Bill. All those working for children and young people need to work together to improve the professional practice that is sharing information. That means improving the children's workforce, including recruitment, retention and training, and addressing the kind of organisational barriers that prevent information sharing. It also means ensuring that all practitioners understand what is good information sharing and how they can and should share information, under current law. We are determined to address all those issues.
With the information database we are simply trying to provide a tool to help ensure that all children get all the services they need at the earliest stage possible. We know how time-consuming and difficult it can be for practitioners even to find out who else is working with a particular child. We want there to be a record for every child so that practitioners can check that basic services are being provided and by whom. As noble Lords know, we also want to see that as part of our way of moving towards prevention and early action by facilitating the discussion of concerns before crisis point is reached.
As we debate amendments on this clause I hope to establish some common ground on the core elements of what we intend the database to cover but also to acknowledge that the question of how we use the database to support that shift towards prevention is not straightforward. I want to test with the Committee the balance between avoiding infringements of confidentiality and privacy and striving to improve communication to address a child's needs as early as possible.
I also look forward to being able to focus on key issues on which noble Lords have concerns, to take them away and to consider them carefully before Report stage. I want to be able to combine consideration of what noble Lords say in debate with examination of the experience of the Trailblazer pilots. I may have already said that it is my intention to arrange a meeting before Report so that any noble Lord who wishes can hear from the people working on those pilots. Noble Lords may know that some of those people are speaking to the All-Party Parliamentary Group for Children on
It is against that backdrop that I very much look forward to having the opportunity to hear noble Lords' concerns and to explore in Committee what needs to be done between now and Report.
I turn briefly to Amendments Nos. 146 and 152, which provide for notification for parents and children whenever information is recorded on or disclosed from those databases. Automatic notification would not be required under the Data Protection Act because the population of databases and the disclosure of information from them would be required by regulations to be made under the clause. The noble Earl, Lord Northesk, referred to that issue in the previous amendment.
It is important to know that the Data Protection Act works. As noble Lords will know from the early provisions of the Data Protection Act, the purpose of putting in this regulation-making clause is to enable us to use the databases without having to refer to anyone each time a piece of information is shared. We do not expect to change data protection law in respect of notification. Nor is it our intention under this clause to create such an entitlement in relation to information sharing. We would have a bureaucratic nightmare if every time a piece of information was entered onto or shared through the database it had to be printed out and copies sent to the child and the parents.
Under the Data Protection Act parents and children of course have the right to see what is held on the database. Except where there is an exemption under that Act, those with parental responsibility for children will have access to the information held about them on the proposed information databases under the subject access provisions of the Act. They would be able to comment on what was on the database and obviously to comment particularly if something was inaccurate or in need of updating. I wish to make clear that we have absolutely no intention of altering those rights.
I welcome the opportunity to clarify our intentions about how children and their parents will be enabled to know that information would be entered onto the databases. We intend that parents and young people in areas to be covered by databases will be informed that such databases are being set up, how they will work, and, in broad terms, what information will be included on them and which professionals will have access to the information. In Trailblazer areas fair processing notices have already been issued to local households explaining the new arrangements. We intend to issue guidance on good practice in informing people about the purpose and operation of databases in any wider roll-out of databases provided for under the clause. Good practice would include telling children and parents that the practitioner may use the database to record details of involvement or concerns and for making contact with other practitioners.
We are committed to good practice that ensures children and parents are kept informed about—I would say "kept involved with"—action that practitioners are taking in respect of children. But I cannot agree that it makes sense to have an automatic notification every time a piece of information is entered, changed or disclosed from the database. Noble Lords will remember that I have said many times that there will be no case notes on this database. This is an opportunity for bringing together, in a sense, the databases that in many cases already exist. Children are on databases held by education authorities. They contain such information as which school they attend, their address, their age and so on. Databases held by the health service include their health number, their GP practice and may include information about health visitors. We shall debate that later. This is about the opportunity to bring existing databases together in a way that enables the practitioners because of that overlay to be able to provide better services. It is a tool to talk and nothing more.
I hope that with those reassurances and particularly my reassurance about the purpose for me of this afternoon's debate, noble Lords will feel able to withdraw their amendment.
I thank all noble Lords who have taken part in the discussion, particularly the noble Earl, Lord Howe, for his most welcome comments. I apologise that we have strayed into Clause 8, but as I hope I made clear, there was a good reason for that—a fundamental disagreement between ourselves and the Government. We on these Benches are clear that the recording of information without a very clear tie to some action that will result from it is a fundamental flaw in the system. That is why we had to frame the amendments as we did.
Perhaps I may briefly talk about Clause 8. I shall not go through all the points which the noble Baroness talked about at the end of her reply. Many noble Lords have amendments on those points. They will discuss those points in greater detail and presumably with greater skills than I have. I simply say this: the noble Baroness talked about Clause 8 being a tool to talk. I do not think that that is good enough. Amendment No. 130 is tied to the points about information disclosure in Amendments Nos. 146 and 152. We should give a reason to talk and a basis to do something. That is the critical difference—having a purpose and an outcome to the sharing of information for children.
I understand what the noble Baroness says about the assessment framework and I hear what she says about guidance. I am afraid that I did not wholly buy her argument about the resources that would be required for Amendment No. 130 because some time this afternoon we will talk about the resources that will inevitably be incurred in the setting up and the operation of the database. They will be vast. For once I believe that this side of the Chamber has an argument for targeting in respect of which the noble Baroness's argument did not hold water.
I believe, as do others, that multi-agency work is a good thing. But it only works when it works to tight definitions and when its preventive value can be measured. The whole point of Amendment No. 130 was to tie that to the Section 17 duty to assess.
It is worth reminding noble Lords that the Section 17 duty to assess can operate at very different levels. At one level there is an initial assessment, which may be minimal and may cost almost nothing. If a serious matter comes forward there is a core assessment. It is more expensive, but, in terms of promoting children's welfare, it may be a cheaper option than crisis intervention later on down the line. We will return to that subject throughout the afternoon. I believe that Clause 8 crystallises a great danger that professional will speak to professional—perhaps—but not talk to children and their families and they will not talk about specific and definite concerns which are then addressed. The heart of the amendments is about trying to tie that communication to a reason and to an output.
I hear what the noble Baroness has said. I was disappointed that she does not see that these amendments, taken together, could form a framework for something which may be an IT system, but which is much more tightly defined than that which is currently set out in Clause 8. I think that may well lead to a far better deployment of resources. I would hope that those resources would be people who work with children and not IT professionals.
I note and welcome the noble Baroness's comments about the offer to meet people who have taken part in the Trailblazer pilots. I hope it is not too churlish to say that I should like to meet those people along with a control group of people who are not in Trailblazer pilots, but who, none the less, have had vast experience of working with children. I still believe that what we tried to address in these amendments must be looked at, which is why professionals do not talk to each other. The two taken together I think would be extremely powerful. At this stage I realise that I shall not get much further and I beg leave to withdraw the amendment.
moved Amendment No. 130A:
Page 6, line 11, at end insert—
"( ) The following subsections shall be inserted at the end of section 8 of the Children Act 1989—
"(5) Where it is alleged that a party to the proceedings has inflicted ill-treatment on the child or on another person, the court shall, as soon as practicable, determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings, whether the allegation of ill-treatment is proved.
(6) Where the court is satisfied that a party to the proceedings (in this section referred to as the abusive party) has inflicted ill-treatment on the child or on another person, the court shall not—
(a) make any order granting the abusive party residence of the child; or
(b) make any order granting the abusive party contact (other than supervised contact) with that child, unless the court is satisfied that the child will be safe while the abusive party has residence of or contact with the child.
(7) Notwithstanding subsection (5), where in any proceedings—
(a) the court is unable to determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings whether or not an allegation of ill-treatment is proved; but
(b) the court is satisfied that there is a risk of harm to the child, the court may make any order under this Act that it considers necessary to protect the child.
(8) When determining whether the child will be safe if contact or residence is granted to the abusive party, the court shall, so far as is practicable, have regard to the following matters—
(a) the nature and severity of the ill-treatment;
(b) how recently the ill-treatment occurred;
(c) the frequency of the ill-treatment;
(d) the risk of further ill-treatment occurring;
(e) the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person;
(f) whether the other party to the proceedings—
(i) considers that the child will be safe while the abusive party has residence of, or contact with, the child; and
(ii) consents to the abusive party having residence of, or contact with, the child;
(g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;
(h) any steps taken by the abusive party to prevent further ill-treatment from occurring;
(i) any other matters as the court considers relevant.""
The amendment is about keeping children safe when they have contact with their parents after the parents have split up. It is widely recognised that when parents separate it is usually better for children to remain in contact with both parents. That is acknowledged in the first line of the amendment. Indeed, it has been acknowledged in a great deal of debate in the media and elsewhere since the events in another place last week.
However, contact arrangements can be dangerous in cases of domestic violence or child abuse. It is worrying that in some cases orders for unsupervised contact have been granted to Schedule 1 offenders convicted of offences against children. So the measures are needed to ensure that children do not suffer harm as a result of family court decisions.
New subsections (5), (6) and (7) address the issue of safety in the most direct and practical way by stating that if a parent is found to be violent within the family, the court must not grant residence or unsupervised contact to the violent parent unless the court is satisfied that that can be arranged safely for the child. That rebuttable presumption is based on Section 16B of the New Zealand Guardianship Act. Similar measures have been adopted by 23 states in the United States of America.
The amendment also states that if there is insufficient evidence to prove abuse, but the court is satisfied that there is a real risk of harm to the child, the court can make whatever order it considers appropriate to protect the child. New subsection (8) contains a mandatory risk assessment checklist. The effectiveness of the New Zealand legislation is often attributed to that checklist, which provides a framework for court welfare reports in any cases in which there are allegations of abuse. That is an integral part of the amendment, especially as Safety and Justice failed to ask any questions about risk assessment and CAFCASS does not have national risk assessment procedures.
Last year, the Home Office commissioned the Women's National Council's Violence Against Women working group to consult with domestic violence survivors across England and Wales. On child contact, the WNC states:
"The sheer volume of concern expressed by women on this subject at every consultation workshop we held was overwhelming and illustrates the distress child contact causes women and children".
The clear message coming from all the women's groups is that you cannot keep a woman safe by ignoring the safety of her child.
I have been impressed by the extent of the support for the amendment. I have been supplied with a list of 75 organisations and many key individuals, such as lawyers, academics and other experts, who support the measures in the amendment. Those measures reflect the advice provided by two eminent child psychiatrists to the Court of Appeal. Dr Clare Sturge and Dr Danya Glazer said:
"We consider that there should be no automatic assumption that contact to a previously or currently violent parent is in the child's interests: if anything the assumption should be in the opposite direction".
It is frequently claimed that the welfare principle in the Children Act 1989 provides adequate protection for children. However, last year, a Women's Aid survey involving 178 refuge services found that only 3 per cent thought that appropriate safety measures were now being taken.
It is also frequently claimed that judges need to be able to respond to individual cases under the Act, and that it would be wrong to fetter their discretion. The Children Act does not state that contact must be granted in private law proceedings, but in 2002 the court granted 61,356 contact orders and refused contact in only 518 cases. That is less than 1 per cent. However, recent research commissioned by the Department for Constitutional Affairs found that allegations of domestic violence feature in 23 per cent of contact and residence cases. In 1999, the Family Court Welfare Service said that it was dealing with about 16,000 cases a year involving domestic violence.
The judges have clearly fettered their own discretion. Women's Aid believes that that is the result of case law precedents that place too much emphasis on contact, minimise domestic violence and set an unreasonably high standard of proof.
None of that is to say that fathers should not have appropriate contact with their children where there has been no violence and is no risk to the child or, of course, to the mother. Risk assessment is vital in cases of domestic violence, because it is strongly linked to child abuse. The Department of Health has acknowledged that nearly three-quarters of children on the at-risk register live in households where domestic violence occurs.
That danger does not vanish when the parents separate. Research has shown that women who leave violent men face an increased rate of homicide at the point of separation and are in great danger for up to a year after it. That is exactly when the courts are likely to receive a contact application from the perpetrator, so that is the time to intervene. It is not only the mother who is in danger. A survey of 130 abused parents in 1999 found that 76 per cent of their children were said to have been abused during contact with violent parents. We cannot be complacent about the current arrangements. Since February 2002, 10 children have been killed as a result of contact arrangements.
Despite all that, as I said, the Children and Family Court Advisory and Support Service still does not have a national risk assessment policy. Previous domestic assault has been identified as the simplest, most robust risk marker of subsequent domestic assault. For that reason, when assessing risk, it makes sense to focus specifically on what is known about domestic violence that has already occurred in individual cases. That is what new subsection (8) in my amendment does.
It would be an appalling irony if children who have experienced domestic violence did not benefit from either the Domestic Violence, Crime and Victims Bill, which was debated in your Lordships' House not many months ago, or this Bill. We failed to introduce such an amendment into the former and I hope that the Government will agree to include it in this Bill. I beg to move.
In response to the amendment, I am sure that the noble Baroness recognises that the Government take seriously the issue of domestic violence and, in particular, its impact on children. The Committee may know that I serve as a member of the cross-government inter-ministerial group, which is supported by what is known as a virtual unit of the Home Office but involves civil servants from all departments, including mine, that have any interest in the area. I recognise the sincerity and strength of feeling expressed by the noble Baroness and have met several organisations to discuss such issues as well as speaking to the all-party group which is concerned about them.
Clause 7 is about placing a duty on specified agencies to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. I appreciate that the noble Baroness intends to insert the amendment in the most appropriate place, but, by contrast, it would require courts in proceedings relating to contact and residence orders to determine any allegation of ill-treatment and, if proved, not to make a residence or contact order.
We assume that it is intended to relate to applications for residence under Section 8 of the Children Act 1989. The relevance of the Children Act is that the child's welfare must already be the court's paramount consideration. The court must apply the welfare checklist as set out in Section 1(3), which includes any harm that the child has suffered or is at risk of suffering. The definition of harm in the 1989 Act, as the Committee will know, has been amended by Section 120 of the Adoption and Children Act 2002, which now further defines harm by including impairment suffered from seeing or hearing ill-treatment of another.
That provision is due to commence with effect from January 2005, as the resources necessary for the additional public legal funding of applicants and respondents, which falls to the Legal Services Commission to meet, have now been identified. That will build well on the existing practice direction issued by the President of the Family Division and the related case law judgments. While the Government have enormous sympathy with what the noble Baroness is trying to achieve, they contend that the amendment is not necessary.
The commencement of Section 120 will be accompanied by the introduction of revised court forms, which will enable the parties to Section 8 proceedings to make clear any allegations about domestic violence and its impact on children that may be relevant. That will in turn allow findings of fact to be made by the family courts at an early stage in proceedings, enabling the determination appropriately to influence the making or refusal of contact or residence orders in the ongoing context, as I have already indicated, of the child's welfare remaining the paramount consideration of the court, which I am sure noble Lords would agree is critical.
The Government's view is that we should rely on the full implementation of the Children Act 1989 as now amended by the forthcoming commencement effected by Section 120 of the Adoption of Children Act 2002 without taking what might be seen as steps to qualify or obscure the paramountcy principle, which is central to the 1989 Act. We hope that on the basis of the commencement of Section 120 and what I have said to reassure the noble Baroness about the issues that I know are at the heart of the amendment, she will feel able to withdraw it.
I have considerable sympathy with the amendment but what worries me, having listened to a great deal of evidence from various groups, is that there appears to be a postcode lottery in a court ensuring that the contact arrangements are safe.
I would be grateful if the Minister could say a little more about whether some of the arrangements she has been outlining take proper considerations. The decisions of various courts have caused a great deal of concern. We still do not know the number of children who have died as the result of inappropriate access orders, because the figures have not been kept separately.
I accept what the noble Baroness is indicating, but if her concern is to ensure that we have consistency it is not about writing this amendment in the Bill, but about some of the issues that my noble friend Lady Scotland indicated during Report stage of the Domestic Violence, Crime and Victims Bill. That is to make sure that the measures set out in Section 120 are implemented properly and that, where necessary, the courts have access to the right kind of training and support.
I am not going to comment on the figures, because with the figures that I use from time to time it is sometimes difficult to know which are concerned with those who make private arrangements and which with those where the courts are involved. If any child dies as a consequence it is a tragedy, and a tragedy too far, but the measures I have indicated will be implemented, as my noble friend said on Report of the Domestic Violence, Crime and Victims Bill, and will make an impact. We should allow them to come into force and examine the consequences rather than put the amendment in the Bill.
I thank the Minister for her reply and the noble Baroness, Lady Howe of Idlicote, for her support. The Minister talked about the current arrangements meaning that there has to be an assessment of the harm that the child has suffered. In the amendment we are trying to look to the future and assess the possible risk that might come to that child from unsupervised contact.
The amendment is based on the fact that the current arrangements are not adequately protecting children. That could involve the way in which the current arrangements are working, but if they are not working in a way that adequately protects children we need to look around the world and see if it is being done better somewhere else. There is evidence that the New Zealand experience is better than ours. The crucial difference between their arrangements and ours is that they have risk assessment.
I will consider what the amendment achieves and carefully read in Hansard what the Minister said, but we will probably want to pursue this matter at a later stage because it could be a matter of life and death for children and it does not require an enormous amount of extra resource or anything of that nature. It simply requires a critical path to be followed in terms of looking to the future and assessing the risk.
I know that we cannot always iron out all risk from any situation, but at least if we have a proper check list and consider the risk within such a framework we are likely to spot situations where children might be in danger where we might not otherwise do so. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 130B:
Page 6, line 11, at end insert—
"( ) The Secretary of State may under this section give a children's services authority or any of its relevant partners under subsection (1), such directions as the Secretary of State thinks expedient for the purpose of securing the co-operation of the authority or its partners to ensure that the objectives of this section are fully met."
The amendment's purpose is to insert a new subsection (5) to ensure that the new duty to make arrangements to safeguard and promote the welfare of children can be enforced. That involves providing teeth, which we have discussed on previous days in Committee. The current arrangements to safeguard and promote the welfare of children will be covered by guidance, but I have said before in Committee that it is well known that if the guidance is breached it will not be possible to take legal action.
The amendment, like an earlier similar amendment that I moved, came from the NSPCC. It recognises that there will be inspection frameworks that can be used to determine whether the relevant partners are making arrangements to safeguard and promote welfare. But such inspections may occur only every three years and a great deal can go wrong in between. Providers of public services could meet inspection targets without necessarily providing a high-quality service.
The mandatory order will ensure that the new duties under Clause 7 will be enforceable, complementing other proposed amendments to Clause 6 and later to Clause 45 that we have submitted, which will create a new duty to develop local safeguarding plans. In the unlikely event of a breakdown in co-operation that causes detrimental harm to service deliverers, there has to be a final recourse to the Secretary of State. The amendment ensures that the direction to intervene given to the Secretary of State is stated in the Bill and is based on a similar provision inserted after Section 497(1)(a) of the Education Act 1996.
I said in a previous sitting in Committee that I am usually reluctant to give the Secretary of State more powers, but in this case the safety of children is paramount. Because we have a three-year gap between one inspection and the next there needs to be a power to intervene and to ensure that services are delivered in the interests of the safety of children. I beg to move.
I recognise the noble Baroness's good intentions, but I am afraid that once again I have to part company from her as I did over her similar Amendment No. 112A. To give the Secretary of State powers of intervention that are additional to those he already has in the Bill and indeed in other legislation could prove counterproductive. Under this amendment the Secretary of State might see fit to make directions that were highly specific. If he were to do that, it could undermine the work undertaken by local authorities across the whole safeguarding system.
Under the Bill it will be up to local authorities and their partners to assess the level of need in an area and to prioritise the services required to meet that need according to available resources. If we then say that the Secretary of State has the power to override that process at will, not even when he thinks that the system may be failing, we are putting a question mark over the basis of locally elected government. We are also in danger of destabilising and placing at risk the plans that an authority will have to commission a range of different services under Clauses 6 and 9.
My right honourable friend was very grateful to the noble Baroness for wishing to give him more power. But he finds himself in the same position as the noble Earl, not least because we do not believe that the power is necessary in this part of the Bill. The clause specifies the agencies that will be subject to the duty to have regard to the need to safeguard and promote the welfare of children while carrying out their normal functions. It aims to raise the priority that is given to safeguarding children in those organisations and encourage them to incorporate the duty in their objectives and priorities.
Together with the duty to co-operate in Clause 6, all those agencies will be mindful of the need to safeguard children and promote their welfare. However, the Clause 7 duty is not about co-operation. It is about how individual agencies exercise their functions. A direction-making power to secure co-operation is therefore redundant in the context of this clause. Co-operation, except where it is a function of the agency, is not a central part of the clause.
However, it might be helpful if I set out briefly what could happen if, for example, one of the key partners locally does not believe that another partner is playing its part in delivering adequate safeguarding arrangements. In Every Child Matters: Next Steps, we said that disputes can be resolved by involving the performance management or scrutiny body of the relevant organisations.
I am sure that this would never happen, but, for example, if a primary care trust was not felt to be working effectively, the strategic health authority or the performance management body could be involved. If concerns remain, the inspectorates can be invited to provide an independent assessment and develop an improvement plan. If the partners do not comply with that plan, any member of the group of partners or the performance management body can refer the case to central government. The relevant Secretary of State can then direct the partner to comply with the recommendations of the inspectorate.
That sets out the situation briefly. However, I shall write to the noble Baroness to set that out in fuller detail and send a copy to the noble Earl; I shall also place a copy in the Library of the House. Within the powers that we already have—bearing in mind the points made by the noble Earl about the appropriate nature of interventions of the Secretary of State—and the relevance of using the performance management structures already in existence, we think that we can extinguish the noble Baroness's fears. I shall therefore write to the noble Baroness. On that basis, I hope that she will feel able to withdraw her amendment.
I am grateful to the Minister for her reply and her forthcoming letter that will explain how the Secretary of State could intervene. I am anxious to know the trigger and how it would work to ensure that something would happen if things were going wrong between the three-yearly inspections.
I take on board the comments made by the noble Earl, Lord Howe. But I do not think that my amendment would mean that the Secretary of State could intervene at will. The last few words of the amendment say that he could intervene only,
"to ensure that the objectives of this section are fully met".
However, clearly there are problems with the amendment. I look forward to reading the Minister's letter. I beg leave to withdraw the amendment.
We move now from the relatively calm waters of Clause 7 to the much choppier seas of Clause 8, albeit with the oil that the Minister has already poured on this clause, for which, I am sure, we are grateful. In moving Amendment No. 133A, I shall speak also to Amendments Nos. 134, 135, 135A, 145A, 152A and 210.
I am sure that I do not need to tell the Minister of the nature and extent of the concerns that so many individuals have voiced about this clause and the Welsh equivalent, Clause 23. We have here what your Lordships' Delegated Powers and Regulatory Reform Committee have described as "skeleton" provisions, which consist of a delegation of power, which, in the committee's words, is "very wide indeed". The clear view expressed by the committee is that much more needs to be in the Bill.
Amendment No. 134 is intended as a start to that process. Ministers have told us that a large number of decisions about the proposed databases have yet to be made, but the intention seems to be for there to be a series of local information hubs that may be supplemented by other hubs at regional or national level. Page 21 of Every Child Matters: Next Steps states that the purpose of the databases will be,
"to facilitate the sharing of information between the providers of children's services about the children they are working with, in order to safeguard their welfare and promote their well-being".
The scale of that operation is still unclear. For example, it has not been explained whether the intention is for all children to be logged on to the database or only some; in other words, only those children who are receiving services pursuant to Clauses 6 or 7.
However, the questions addressed by my amendment are twofold. What information should appear on the databases? How is it proposed that information on one local database will be passed to another local database when, say, a family moves from one end of the country to the other?
At Second Reading, the Minister made clear that there is no intention of allowing substantive concerns about individual children to appear on those databases. Rather, the idea is to have a system whereby someone with a concern can raise a flag on a database that would act as a means of initiating communication with other professionals who may be entertaining concerns of their own about the same child.
For the time being, I shall take it as read that a system of that kind is necessary and well conceived, although later I shall question that assumption. However, let us suppose that those databases do what is promised and act as a catalyst or a conductor for timely and appropriate information sharing. I believe that that can be done and, more importantly, should be done by allowing only the minimum amount of relevant information to appear on the database: that is, the name of the child and some uniquely identifying reference details about that child, such as a number, date of birth, sex, name, the contact details of the person logging the information and the date of the entry. Finally, there should be a flag, which would indicate in some way the gravity of the concern that the professional has. In my opinion, there should not be any information about what the concern consists of, nor should there be any kind of case history about the child. The point of the database should be to facilitate contact between professionals, which is what the middle section of my amendment is designed to achieve.
However, as I said, flags of concern on a local database will be of no earthly use if a child moves out of the area that the database covers. What happens then? There must be a system whereby a local authority with concerns about a child who has newly arrived in the area can find out whether anyone in any other local authority area has previously had concerns about that same child. If applicable, it should be able to access the relevant professionals in that other area.
One practical means of achieving that would be to have what might be termed a national mutual reference database. There are understandable worries about having any sort of giant national database designed to facilitate information sharing. However, my proposal could be much better described as a national signposting system, designed to put one local hub in touch with another. It is not for me to say precisely how this should be done, but the principle is that a national database would contain the name and identifying details of a child, together with the name of the local authority on whose database any flags of concern about that child are to be found. There would be no more on it than that.
I take the Government at their word that they do not want to see confidential information about children at risk or children in need accessible on the web. I believe that we should not countenance that idea, even if access to the databases is very strictly controlled and limited. The concept of it is wrong and the consequences are dangerous.
I offer Amendment No. 134 not as a blueprint to which I am inexorably wedded, but as a starting point for debate. I hope that the Minister will be receptive at least to its broad thrust and that we may have a basis here for further discussion.
Turning briefly to the other amendments in the group, Amendment No. 135A is an attempt to tighten the wording of the clause so as to make clear exactly what these databases are for. Amendment No. 145A is aimed at ensuring that there is one named person who is accountable for the operation of each database. I am absolutely sure that this is necessary if we are to have an accurate, secure and tightly run system.
Amendment No. 152A is designed purely to probe the Minister about the purpose of subsection (6). If its purpose is to allow certain officials to require that data must be exchanged under the regulations, then I believe that this should be made explicit, and a list of the officials or other persons should appear as a schedule to the Bill. I beg to move.
I should like to speak to Amendment No. 135 in my name. It seeks to ensure that those responsible for the operation of any and all databases have a clear and unambiguous duty to protect children and to promote their welfare in all their operations.
The amendment was suggested to us by the Children's Society, which is concerned to ensure that it is a statutory requirement upon those responsible for the operation of the database to safeguard children and to promote their welfare. That would be in keeping with the Government's aim to legislate for improved information-sharing, as set out in Every Child Matters, which stated:
"The key is to ensure children receive services at the first onset of problems, and to prevent any children slipping through the net".
It would also be in keeping with the intention that information-sharing links with the new duties be established to co-operate, to improve well-being—in Clause 6—and to safeguard and promote welfare, in Clause 7.
Under the provisions of Clause 8—should it go through your Lordships' House unamended—databases may be established and operated nationally, regionally or locally. It may therefore be that such a database is established and operated by a local authority which currently has statutory duties to safeguard and promote the welfare of children in need and at risk, and will have more general duties under proposals under Clauses 6 and 7. However, it is also possible that larger regional databases or a single national database could be established without the same clear existence of a safeguarding duty upon them. The amendment would ensure the necessary consistency and clarity that any and all databases will have a duty to protect children and promote their welfare in all their operations, whether they have duties laid upon them under Clauses 6 and 7 or not.
It is vitally important that the job of the data manager on a database of this kind is clearly understood to be one that will routinely involve the making of judgments. That will affect the rights, safety and well-being of children. It would be a matter of great concern if the operation of a database were thought to be a matter of mere technical competence in operating the system and complying with guidelines or, indeed, if it were thought that all situations and judgments to be faced could be anticipated and effectively regulated by guidance.
Making clear the statutory duty upon database operators will have a clear impact on how the database systems are constructed and operated, influence the skills sought and training needed for the staff to operate them and provide an unambiguous objective when operators are faced with difficult judgments about recording, disclosure and access.
My Lords, I should like to speak to Amendment No. 134 in my name.
The noble Earl, Lord Howe, began to set out some of the concerns that have been expressed about this clause. I do not know whether the Government were trying to lead by example, but they seem to have crafted a clause which has raised a load of concerns, partly because of its lack of definition and skeletal nature.
The amendment was drafted prior to the issuing of the Minister's policy guidance statement about the regulations. I am grateful to the Minister for producing that; it has been enormously helpful to see the Government's intent about what will be covered in regulations. However, it is also accurate to say that that policy statement raised as many concerns as it answered in what it said would be included and what would be omitted from the database.
The noble Earl's amendment is extremely helpful, not least because it touches upon a very fundamental issue of confusion, experienced by a lot of people, about whether the database will be national or not. That is a key factor.
There are four extremely important points in the amendment. First, it refers to an identifying number. I believe from the department's policy statement that there is an intent that there will be an identifying number for any child who is on the database. I wish to put on record our hopes that that will not be the child's NHS number. There is a great potential for the compounding of data which may be erroneous. While using the NHS number would in many ways be the most simple and superficially attractive system—we all have NHS numbers from a very early age—it could, I believe, be extremely harmful.
Secondly, one of the many attractions of the noble Earl's amendment is that it mentions the date on which an entry was made. That is a fundamentally important piece of information in any system of this kind. The Minister's policy statement, which I have read very carefully many times, talks about an audit trail of information. Perhaps she will clarify whether an audit trail carries within it the implication that all entries on the database will be dated and that the dating will be indelible and not erasable.
With regard to cases where there have been major inquiries into children's deaths, the inquiry of the noble Lord, Lord Laming, into the death of Victoria Climbié was damning in its indictment of the failure to observe basic administrative procedures within social services and in health. Similarly, on a previous amendment, the noble Earl talked about people who have had the grave misfortune to have been falsely accused of harming children. Often, the proof of their innocence lies in mundane, bureaucratic detail, so this is a simple but crucial element of the amendment.
I also wish to mention the degree of concern. At a later stage, with the assistance of people more able to talk about these things with authority than I can, we will discuss matters such as soft and hard data and so forth. However, it seems reasonable that it is not sufficient to register a concern without indicating the severity of that concern. I have returned to the argument about assessment that I tried to put forward on a previous amendment—about arriving at an agreed basis on which one determines that a child is in need or in danger and that action needs to be taken.
I agree that, if one is trying to compound preventive systems to create a universal system for children, with a system that addresses the needs of children who are at risk of very great harm, there must be some way of differentiating concerns that are minor and not immediate. Otherwise, there is a potential for professionals—and professionals work hard enough at the moment—to be inundated with irrelevant concerns. Equally, there is a grave danger that professionals will not use such a system because they are aware of the consequence of recording a concern—a series of potential involvements with other agencies, which may not be necessary, for example. That is the difficulty.
Whatever the fate of this measure, the most important word in the amendment—to which we will return—is "comprise". The amendment refers to,
"information for which provision may be made under subsection (1)(a) shall comprise".
In the Bill as drafted, "include" is the word used. "Include" is not a definite term: it means that other information may be included. "Comprise" is a definite term. I am not a parliamentary draftsperson and I never will be, but in the many submissions that I have read about this matter, that word has cropped up time and again. Whatever the fate of the noble Earl's amendment, it is right to record at this stage that we may return to the word "comprise", if nothing else.
In relation to this whole group of amendments, I start by thanking the Minister for sending me a copy of her statement on Clause 8 policy, in which there is reference to the supply of data. When the Minister replies, will she confirm that the supply or input will be restricted to qualified professionals? That would set at rest a good many fears and anxieties.
Secondly, on the supply side, will the Minister give us further information about the possibility of recording mere suspicions or whether the supply will be restricted to established facts? I notice that the statement uses the word "concerns" about a given child. If those are to be recorded, will it be necessary to include a reason explaining why the professional in question is concerned about a particular child? With such safeguards, I hope that it will be possible totally to exclude any malicious input.
On access to the database or databases, will those wanting access be required at least to show—if not to prove—that they genuinely have a need to know? That could be another important safeguard.
I am grateful to the noble Earl and the noble Baroness for introducing their amendments. Notwithstanding the proviso that the noble Earl placed on the amendment—that he did not want to say anything that assumed that he would not later question the existence of the database—I agree with everything else that he said. I hope that that gives him comfort. I am never sure whether it gives him comfort or makes him nervous.
I will work through the amendments and also deal with the specific points made by the noble Baroness, Lady Barker, the noble Lord, Lord Hylton, and the noble Earl, Lord Listowel.
I welcome the opportunity to reiterate some of the objectives that we have for the databases. They are not intended to focus exclusively on children at risk of harm or abuse or as an alternative to the child protection system. They are intended to help professionals in children's services in health, social care and education to identify quickly basic details about the child with whom they are dealing; identify children who are not getting the basic education or health services; identify other professionals already working with that child so that they can share information with them more easily when that is appropriate; and identify any other professionals who might have a concern about the child's wellbeing or safety.
To use a small and simple example, if we were to put the health service database that exists on children on top of the database that exists on every child in education authorities, my guess is that we would easily find children who were not in school. Education welfare services would be able to identify those children easily. I ask members of the Committee to keep the overlaying of databases in mind. Certainly, in my experience of working on crime and disorder partnerships and as chair of a health authority, if one gets the opportunity to overlay different types of information, one can sometimes identify where children are simply not getting the basics—when they are not in school, for example.
Amendments Nos. 134 and 210 also raise issues about what information should be held on databases. Noble Lords have referred to the policy statements put forward. It is now time for me to move into commitment stage. I offer a commitment that we will bring forward amendments on Report to address the comments made by the Delegated Powers and Regulatory Reform Committee and the concerns of noble Lords about putting more of the detail on the face of the Bill.
We intend to table a government amendment at Report that will list the types of basic information that the databases will contain. That includes: name; date of birth; address; a unique identifying number—I will return to the issue raised by the noble Baroness, Lady Barker—name and contact details of the person with parental responsibility or in charge of day-to-day care of the child; educational setting; GP practice details and health visitor if there is one working with the child, although the inclusion of health visitors is subject to discussions about their new titles. Likewise, we are intending to put forward an amendment that will set out on the face of the Bill a list of statutory bodies and other bodies that will be required or permitted to supply information to the database.
These amendments do not appear to provide for names and contact details of practitioners providing specialist services to a child to be recorded on the database, only for one initiating practitioner. But, as I have described, this is a tool for talk. It is a tool for practitioners, a telephone directory to help them share information and better identify and respond to the needs of the child. It should not be a mechanical process that initiates action only once a certain threshold is reached. So we would expect that where a practitioner, for example, a health worker, has a concern that a child is not thriving, they would take appropriate action in their own area of practice but would also readily be able to see other practitioners who were involved with that child. For example, in one place they might find the contact details of the social worker or the housing officer. It would be far easier than at present to discuss the child's needs and how best to meet them.
I welcome the opportunity to think about the issues of local, regional and national databases. We have not reached a final view on this and we have commissioned independent technical advice, taking account of the experience of the local authority pilots. We think it is right to have some flexibility relating to the operational aspects of the databases to ensure that we can implement the right approach. We need to ensure that it is technically robust and operationally possible. The noble Earl gave an example of how one might do that in terms of a national signposting system that would enable databases to get in touch with each other.
Databases might be set up on a national, regional or local basis. For example, in view of the mobility of the population in the capital, we think that it may be sensible to establish a regional database for London rather than databases based on individual local authority boundaries. As the noble Earl has indicated, it may be that we need to think about a national database to transfer details of records, but that might be achieved between local databases and the functions of a national database could be limited to records of those children whose whereabouts are unknown and to producing aggregate monitoring data, for example. We want to make sure that we have independent advice. We take on board the comments of the noble Earl about the need to be able to transfer the right kind of information, the information that I have described, to enable children to be found, especially those with particular needs. We want to do this by looking at the work of the Trailblazer project to see how best it might be done so that we do not set up a huge national database if, in fact, this is about enabling local databases or regional databases to talk to each other.
Other amendments raise legitimate concerns about what happens when children move across different parts of the UK or receive services across borders. As noble Lords will know, children's services are a devolved matter and Clause 8 therefore refers only to England, but under Clause 23 Wales has shadow information sharing provisions. We will continue to work with colleagues in Wales to ensure that systems are in place to ensure that children moving between England and Wales are picked up.
Scotland does not yet have parallel provisions in legislation but a number of information-sharing pilots in Scottish local authority areas are under way and officials from the Scottish Executive are keeping in close touch with my officials as the proposals develop. We are also working closely with colleagues in Northern Ireland. It is important that we think about the movement of children across the UK and I hope that noble Lords will feel that we have begun those discussions and that we are able to consider the implications of how best to join up databases in the most appropriate way.
Amendment No. 145A would make the appointment of a person to operate the database a matter of regulation. We do not consider that this is a necessary provision. We think that we should rightly rely on children's service authorities to make appropriate staffing arrangements for fulfilling their duties under this clause. In practice, it is likely that an individual will have day-to-day responsibility for the operation of the database and in regulations and guidance we will be setting out how such persons should operate the database. But that does not mean that we need to require the appointment of such a person in primary legislation.
I can reassure the noble Earl, Lord Howe, that we recognise that carrying out these duties is a serious responsibility. It is for that reason that we have made provision in the Bill for the duties to be among those for which a director of children's services is responsible. That is set out in Clause 13(2)(d) of the Bill. We have placed accountability for this important area on the face of the Bill but we do not believe that we need to regulate for the staffing arrangements to support the director in carrying out this duty.
Amendment No. 135, tabled by the noble Baroness, Lady Walmsley, seeks to tie the purpose of the database specifically to the purpose of safeguarding and promoting the welfare of children. The purposes of these information databases are tied to those of Clause 6, to co-operate to improve the well-being of children, and to those of Clause 7 of the Bill and Section 175 of the Education Act 2002, to safeguard and promote the welfare of children. In one sense, the amendment is unnecessary. Clause 8(1) already makes clear on the face of the Bill that safeguarding and promoting the welfare of children is a purpose of the databases.
In another sense, it would restrict the purposes for which the databases can be used. We do not agree that the databases should be restricted only to the purpose of safeguarding and promoting the welfare of children. They are not primarily a child protection measure. They aim to enable information sharing so that a preventive approach can be taken, through early identification of the needs of children, in order to promote their well-being. There is an implied duty in Clauses 6 and 7 for practitioners working across the range of children's services to share information to fulfil their duties. That should include services in relation to education and training, social and economic well-being and the child's contribution to society: that is the full range of positive outcomes for children as reflected in the objectives set out in Clause 6(2).
We all want our children not just to be safe from harm, critical though that is, but also to thrive in education, to stay out of crime and to have good relationships with their peers. We think that these databases have some role in enabling information sharing to support children to achieve these aspirations. So we think that it is important that they are linked to the improvement of children's well-being as well as to their safeguarding.
Amendment No. 135A seeks to ensure that regulations made under Clause 8(4) should relate only to matters concerned with improving the well-being of children and safeguarding and promoting their welfare. We think that this amendment is unnecessary. Clause 8(1) already makes clear on the face of the Bill that the databases should be created only for these purposes.
Amendment No. 152A would remove the power to sub-delegate decision-making about the detailed operation of the database to local level. I understand that noble Lords have concerns that the current sub-delegation provision at subsection (6) is too widely-drawn. Again, I am offering a commitment. In response to the concerns expressed by the Delegated Powers and Regulatory Reform Committee and by noble Lords today, I would like to offer a commitment that we will table a government amendment on Report to ensure that decisions about permitting or requiring disclosure of information cannot be sub-delegated and that only decisions about granting access to individuals would be sub-delegated. In other words, decisions about permitting or requiring information to be disclosed could not be sub-delegated but decisions to grant access to individuals could be, simply because the Secretary of State could not name individuals in each area who would be granted access. It would be impractical to do so; we cannot specify individual practitioners. We can talk about safeguards. I hope noble Lords will feel more comfortable that we have addressed those concerns.
These issues are being addressed in this way because, as I have indicated, we will look at this afternoon's debate on Clause 8 to see what further issues may need to be taken on board. As I said at the beginning of our discussions on this, we want to bring forward a package that reflects what I have already said. I will continue to indicate where we have already decided that we need to take action and we will reflect on our deliberations so that in good time I present the full package to your Lordship's House.
I am sure that the issue of flags of concern will come up in our further deliberations. I want to help noble Lords a little on that, particularly the noble Baroness, Lady Barker, and the noble Lord, Lord Hylton, who raised the issue. We think that recording concerns on the database is a simple way in which one practitioner can signal to another that he has a concern about a child. There will be a clear expectation that the practitioner recording the concern will do something about it, which will usually involve talking to another practitioner. If other practitioners have reason to be concerned about the same child, they too can see who they should be talking to.
We hope that such discussions will enable practitioners to form an accurate early judgment on how to work together to deal most effectively with a child's needs. I reiterate that, time and again, professionals cannot act on those early concerns because they do not know who else is involved. For example, housing issues and concerns might arise in the case of a child who frequently suffers from bronchitis. The ability to have those conversations could be critical in early prevention and addressing issues in a preventive way. I know that noble Lords would wish to see that.
We do not want to constrain the recording of concerns only to circumstances where there is a significant risk of harm to a child. We want to ensure that practitioners communicate effectively. However, we are fully aware of the existence of that concern and the fact that we will have to convey our intentions very clearly. The decision about whether a concern exists and should be recorded must remain one ultimately for professional judgment. However, as noble Lords indicated, we have to set the context for practitioners.
We are looking carefully at the different approaches currently being taken by the trailblazer pilots. I hope that noble Lords will have the opportunity to listen to the different approaches of those pilots—all of which are working very closely with all of the practitioners and, of course, with families in their area as well—to look at how they are developing the different models. We also want to consider the comments made in your Lordships' House, both on Second Reading and today in Committee, before concluding that there should be an amendment at Report to clarify how we will provide in regulations for the recording of concerns. That is to show how seriously we take the points that have been, and will be, well made by noble Lords. I am listening very carefully. We will take those points away and look at what has been said.
I should like to focus for a minute on the four points raised by the noble Baroness, Lady Barker. I heard what she said about the NHS number, but I do not think that I understood it. I apologise for that. As we have made no decisions about this perhaps she and I could have a further conversation about it. I think she was alluding to the access that such use would give. On the other hand, the NHS number is the first number that children are given; they receive it when they are born. It is therefore the obvious number to use. However, we have not made any decisions. Perhaps we can pick up those interesting concerns.
The audit trail will indeed have the date of entry. It will trace who has accessed the system and at what point and what date so that one can see the history and patterns of access by individuals as well as dates of entry on the database. I think that that deals with that point.
I have talked about the degrees of concern a little more and how we are beginning to think that through with the trailblazers. However, we are very cognisant of the need to consider that further.
As for "comprise" versus "include", all I would say to the noble Baroness at this point is that although we recognise what she is saying, we are also concerned not to become completely inflexible about adding additional factual details or the need to add in a new type of individual or organisation. So I will reflect on what she said on those issues and see whether we can do more. However, as she would expect, we want to ensure that we do not constrain the Bill inappropriately.
Finally, I say to the noble Lord, Lord Hylton, that we anticipate that it would be qualified professionals. However, we will come to the detail of that later.
I hope that I have answered all the points raised in this group of amendments and that, with those commitments, the noble Earl will feel able to withdraw the amendment.
I should like to pick up a few points, because the noble Baroness has made many extremely important remarks. She talked about overlaying different databases such as school and health databases. Let us use a different verb—compounding the databases. It is quite possible that matters of opinion, or matters of fact that are errors, may be expressed in different databases. Many people have a real and genuine concern that precisely such a system would compound errors rather than highlight them. It does not take an information anorak to make that point. It is a very serious point that can have a dramatic effect on the lives of children. That is the main reason why I mentioned not using NHS numbers.
NHS numbers will make it very easy for those with the technical ability to make their way from one database to another. If it is the NHS database, it might include, for example, mental health information. That is the sort of issue that I am very deeply concerned about.
I am terribly sorry but I think that the noble Baroness has completely misunderstood what I was saying. I was not saying that we should literally overlay basic information such as name, date of birth and school attended and doctor and current information regarding health services and schools. We would most probably find children who, for example, did not have a GP but were in school and children who had a GP but were not in school. This database contains nothing that would constitute opinion about any child; it is purely detail about the matters I have already indicated: name, address, date of birth, educational setting, name of person with daily responsibility for the child and GP services. All the other information would concern which practitioners are involved with that child.
Think of it as the yellow pages of the telephone directory. There will be no consequential access into another database. My point was that we should start from an understanding that databases already exist that contain information about, for example, my children. In my education authority, for example, a database lists much of that basic information about my children including their GP's name, because schools collect that information. The local school and the GP's surgery have that information. We are not creating something that does not already exist in different forms. The difference is simply this. If we ask those with that basic health information and that basic school information to put that basic information together, not only will we find that some have an out-of-date address, we will also find children who are not, as I said, at school.
The provision is not about allowing anyone to access detailed information through another database. That would be completely and utterly outside the scope of the Bill.
I was with the noble Baroness until she said that this will be recording only matters of fact. She has used the analogy of a telephone directory. I do not believe that that is what we are talking about. I think that we are talking about a telephone directory that has lots of scribbles all over it. It will record the agencies in contact with children and people will be able to make observations based on that information. I understand what the noble Baroness is saying about the record being purely factual. However, it is not an isolated piece of information. I suggest that those with the skills to make their way between databases, as people already do, will be able to make their way into some quite serious information.
I am happy that the noble Baroness has challenged that assertion, and I should like to talk further with her about it. However, it ceases to be a factual database the moment she talks about flags of concern. That is the problem. I would go further. I began to have very serious worries when the noble Baroness talked about widening the purposes and use of the database and why she did not want to restrict it. A simple database listing all the demographic details of children in a given area is one thing, but a database that shows up flags of concern is another.
I shall read the noble Baroness's comments.
I thank the noble Baroness for giving way. I seek clarification. A child may be involved with a local youth offending team and may be seeing a mental health consultant. A teacher may then look at a database and say, "Oh, this child has been involved with a youth offending team and with a child and adolescent mental health service". That is quite a lot of suggestive information which might give rise to some concern. Will the Minister address that point?
The noble Earl is right to be concerned about the matter. The noble Baroness made a similar point although I think that she came at it from a different direction. When I compared the database to a telephone directory I meant that it contained basic information. The noble Baroness and the noble Earl suggested that it was a matter of inference. I believe that noble Lords are concerned about inference rather than someone hacking into the system. The matter that is of greater concern, particularly to many children's organisations that I have met, is that of young people not feeling able to work with them because they are concerned that that will be discovered. We shall talk about such sensitive issues later. We must approach them with great care to ensure that we do not discourage young people in that regard.
One always has to strike a delicate balance in these areas. Work is being done to ascertain how this measure is working on the ground. Steps are being taken to ensure that only people of a certain professional level are allowed to access the data that we are discussing. One of the Trailblazer pilots is considering three levels of access to sensitive information to ensure that only those at a very senior level are able to access the relevant part of a child's record. I shall explain in more detail about invisible operators and so on later.
I refer to the concern that people in general should not have access to the entire database. However, we have to put the matter in context. In order to support children, health professionals, education professionals and so on need to know who else is talking with that child. We are taking on board the question of sensitive issues—we shall discuss that later—and the fact that the database should not be accessible to everyone, which would never be our wish. Very carefully screened groups of people will have access to it. None the less, I do not see how we can provide a system that enables people to support children effectively if the database contains only certain types of information but not others. It is important to recognise that already many professionals will know of a child's involvement with other professionals. However, we do not have a systematic way, by means of using this tool, of ensuring that that information is available to them for professional purposes in order to support children. The database should not be used for any old reason.
I hope that I might intervene. How will the Data Protection Act operate in connection with the database? I am thinking of a case recently drawn to my attention where a mother was wrongly accused of Munchausen's Syndrome by proxy and was taken to court. The judge found her innocent and ruled that the family was not in future to be treated differently from any other innocent family. Costs were awarded against the prosecuting local authority. The record office held details of the case and later made them available to a member of the prosecuting local authority social services behind the parents' backs, although the parents were forbidden to divulge details of the case to the press. I am very worried about this database because I think that it will make it easier and easier for local authorities and anyone interested to access information to which they really are not entitled.
We are not seeking to change data protection law in any respect or to make any special arrangements for Clause 8 databases under data protection law. Obviously, I cannot comment on the specific case to which the noble Baroness referred. However, this matter is not about giving local authorities or anyone else access to information of that kind. It is about the opportunity for professionals to get in touch with each other when they need to talk about a child about whom they have concerns.
I appreciate the Minister's response. It has given me time to think more about a possible case that might arise. For example, a head teacher may decide whether to exclude a child or admit a child to the relevant school. The head teacher may see on the database that the child is involved with a youth offending team. The head teacher may then think that the child should not continue to attend that school. I am trying to think through how the measure might work in practice. Can the Minister offer me reassurance on that specific case?
If a head teacher noted that another professional was concerned about a child, we anticipate that the head teacher would get in contact with that professional. I would hope that in the appropriate circumstances the head teacher would talk to the relevant professionals about the child. As regards a child involved in youth offending, at the moment a head teacher or a governing body would make a decision about the exclusion of a child without any reference necessarily to any other professional who might have knowledge of the circumstances of that child.
It is always difficult to refer to examples, but there might be a flag of concern from a social worker who was concerned about what was happening within a child's family. That might support the child being retained in a school. We should not assume the worst of our professionals in this regard. I accept that the measure we are discussing will not in itself be the answer and that we need to discuss certain issues, particularly flags of concern. We could spend the next week discussing individual cases in which we could suspect the motives of professionals. The measure is about ensuring that when people make decisions about children they do so with appropriate information. The noble Lord, Lord Northbourne, is about to intervene but I was going to say that it is absolutely critical also to talk with the child's family.
What the noble Baroness said implies that if a child makes a mistake, or if someone files some incorrect but adverse information about the child, there is no way that that child can escape that information. The medical authorities and the schools will all have that information. Short of going abroad, the child will not be able to escape that blot on his or her character. Is that really fair?
The database does not have information on it. It has the name, address, date of birth—
We are not talking about blots on a child's character. We are talking about children in need—children who we believe might benefit from extra support from services. Let us go back to the beginning. The reason all this came up was that it was very much part of the recommendations that emerged from the Climbié inquiry and from other people who have had years and years of experience and who say that whenever a serious incident with a child occurs, it is almost invariably the case that some professionals say, "If only I had known these other professionals were involved, I would have acted sooner or differently". We must address this issue. I accept that it is not easy.
However, we should not assume that professionals will act in the worst interests of children. Indeed, all our professionals who work with children are trying to support them. My contention is that we must give them effective tools to support children. Sometimes it is difficult and time consuming for professionals to find out whether other services are involved with a child.
I have acknowledged the concerns that noble Lords have. I have said that we need to consider more carefully the fact that flags of concern might lead people to the wrong conclusions, or constitute blots on a child's character. However, I do not believe that is the case. I believe that the registering of a concern provides an opportunity for other professionals to talk to each other. It may be thought that simply having a list of the agencies involved with a child might lead to a suggestion that the child comes from a strange or difficult family. However, without information about which other agencies are involved with a child, it is very difficult to do the work that professionals need to do. That is borne out by experience. Within that context the people accessing the database—we shall discuss that matter—will be seeking who else they need to talk with in order to support a child. They will seek to find out who else can work with them on the child's and the family's side, as it were. That is what the measure is about; it is not about people making bad or malign judgments. It is about supporting and helping children. As I say, I accept that certain issues need to be worked through, but I do not accept that there is any other principle behind what we are seeking to do.
I hope that the Minister can clarify a matter for me. It certainly seems to me that we are talking about information that is available anyway. One of the points made in the Climbié case was that the information was there; it was not put together.
I see the ambivalence in that what we are worried about is new methods of communication, which we know have been abused in other ways. Presumably, we are having to weigh up the value of the new method against the lack of co-ordination which was more likely to occur in the past.
Am I also right in thinking that there will be nothing on the database which is not available in other areas and which will not be shown to appropriate authorities? I include parents in that.
As I have already indicated, parents would have the right under the Data Protection Act to know what was on the database. That is clear. I would not know whether we would have matters which would never be on another database because one of the issues is knowing if and when information about a child is available.
I said, and I reiterate, there is the date of birth, name and address of the child, parent or other person caring for the child. If a professional is working with a child he or she can look up that very basic information and know where the child lives and who has parental responsibility. There will also be details of the other professionals and their contact in working with the child. The flag of concern and the way in which we identify that there is concern is contentious and that I have accepted. It is a difficult issue to work through. I have already indicated our interest in looking at that matter more closely.
But that is it. The purpose is to enable practitioners to identify other people with whom they can communicate. In my earlier example I said that it would also help to identify a child who is on the system because it has a GP but is not at school. Victoria Climbié was known to a number of different agencies, but was never in school. That was because there was no way of identifying that matter.
The use of new technology is a critical part of how many organisations, private and public, now talk to each other and use the system to benefit their own work. We are simply looking for a way to do that here.
I am extremely grateful to all Members of the Committee who have taken part in this debate and in particular the noble Baroness, Lady Barker, for the support which she was able to give to Amendment No. 134. I also thank the Minister for her very full and illuminating replies. Her agreement with the various points I was trying to make is reassuring rather than the opposite in this context because it saves me repeating and reinforcing any of the earlier arguments.
But I have more than a little sympathy with the observation made by the noble Baroness, Lady Barker, when she said that the Minister's policy statement prompted as many concerns as it answered. I believe that some of the later groups of amendments will pick up some of those worries.
One of the concerns I have is the Government's intention to make this an all inclusive system on which the names of all 11 million children in England will be entered. I need to be persuaded that this blanket coverage is either necessary or proportionate to the stated objectives of the Bill, bearing in mind the huge resource implications that we are dealing with here. However, the work of the trailblazer projects will be very informative on that score. I am prepared to be swayed by the results of that work. We shall have time between now and Report to assimilate a good many of those lessons.
As regards Report stage the Minister's commitments are welcome concerning the government amendments she intends to table. The acceptability and the adequacy of them will be judged by reference to the concerns voiced by the Delegated Powers and Regulatory Reform Committee and the minimalist approach to the inclusion of factual data on databases that both the Minister and I subscribe to. Like the noble Baroness, Lady Barker, I should like to see the word "comprise" in the government amendment rather than "include". I hope that point may be borne in mind.
A number of Members of the Committee raised the spectre of the scope for misuse of the system and the information contained in it. These are issues which we shall pick up in later groups of amendments. They constitute a major area of concern. On the whole, I do not take issue with the Minister's remarks; indeed, they lead me to believe that we may be able to reach an understanding on the key issues that the clause embodies. But it is vital that the wording of the clause, when amended, ties down this and any future government very tightly. I beg leave to withdraw the amendment.
In moving this amendment I shall speak also to Amendments Nos. 143, 147, 155A, 211, 214 and 216. These amendments continue the theme of the previous group, which is to try to deal with the question of what information should or should not appear on a database.
As I said earlier, I believe that there are certain kinds of information which from the outset should not be allowed to feature on a database at all. I am very worried by the wording of Clause 8(5)(a) which states,
"information as to the services provided to, or activities carried out in relation to, a person".
This suggests much more than details of identity or flags of concern. In conjunction with paragraph (b) it suggests that someone's entire case history could be posted on the board. I know that the Minister has given us reassurances on that score, but that is what the wording implies. It needs attention.
What if a teenage girl has been having under-age sex and has contracted a sexually transmittable disease or has had an abortion? If the circumstances of such a patient gave rise to a concern on the part of a doctor, we must allow that doctor to post a flag of concern if he has a serious concern. But the system should not legally allow that doctor to do any more than that. He should not be allowed to post details of the services provided to the patient.
Less colourfully perhaps, if a teacher believed that a child was falling behind at school because his home circumstances were making him tired or depressed, and the teacher called in the school nurse to talk to the child, those facts and opinions should not be revealed to others on a database. Apart from anything else, one could not interpret such information out of context. As we said earlier, it is quite wrong in principle to do that.
I shall be raising in a later amendment the question of thresholds of concern, which is to say the point at which a concern becomes serious enough to warrant a flag. But we need to ask here where a concern should begin. Is a policeman obliged to register a concern about a child if the child's father has just been to prison? Perhaps. Should there be a flag of concern if the child's father went to prison 20 years ago and has not since re-offended? Perhaps not. But how is anyone supposed to know where the dividing line is?
In any system of this kind, much will depend—or ought to depend—on the professional judgment of the doctor, teacher, social worker, police officer or whoever it happens to be, but I hope that the Minister will agree that the regulations need to spell out clearly where the boundaries should lie regarding making substantive information about a child accessible by others without prior reference. I am not talking about what is on the database as much as what the flags denote.
The more information that is loaded on to a database, the more there is a risk of information overload. I was pleased to hear the Minister's remarks about the minimalist approach. There must not be scope for information overload, because it leads to further risks—that unauthorised people will have access to details that they should not know about and the risk that resources will be diverted away from direct services to children into maintenance of the database.
If this sort of system is to work at all it must be kept simple. The Government need to demonstrate that sharing detailed information in this way really will safeguard children and enhance their welfare. If it is not their intention that detailed information should appear on the database, then subsection 5(a) needs to be radically re-worded.
I am raising a rather different point in Amendment No. 143. What happens if it comes to the notice of a child or an adult that information contained on a database is not correct? What remedy does the person have to ensure that the misinformation is amended? That is a fundamental point. If untrue information is posted on a database for others to read or is disclosed as a result of a flag that has been posted, how does the subject of that information get it changed? A teacher might suspect that the odd behaviour of a child in class is due to abusive parenting at home, post up a flag and disclose that information to a professional who refers a query to him. What if the assumption is completely wrong? What if all the time the child is suffering from attention deficit syndrome—ADHD? If a diagnosis of ADHD is subsequently made, any hint that there might be abusive parenting should be removed from everyone's records. How does the parent see to that if he becomes aware of it?
It opens up the whole question of the extent to which information held on a database will be disclosed to the child or to his parents. To what extent does the Minister envisage that parents and children will be informed of what professionals have disclosed about them? Will there be a legal entitlement to access one's own file? What if there is a simple error involving the spelling of a child's name or a wrong digit in his date of birth? Who will be able to have those mistakes corrected and how will that be achieved?
Obviously, although mistakes are bound to happen, it is important for those who input a flag of concern about a child—and for database operators—to ensure that any information that they register with the database is subject to prior scrutiny and checking to ensure that mistakes are kept to a minimum. Will the regulations contain any mandatory procedures to ensure that such prior scrutiny and checking does happen?
It would be helpful to hear a little more from the Minister about the type and level of information that she envisages being the subject of a database entry and how open the system is intended to be. I beg to move.
I wish to support the amendments. I suspect that, in view of the Minister's answers to our previous debate, they may seem somewhat trivial. I do not believe that they are, because they are the stuff of which misguided and sometimes even malicious assertions are made against families and, indeed, against practitioners. That is why it is important, particularly, as the noble Earl, Lord Howe, has said, that there is a right of remedy for people to correct information about them that is wrong.
Can the Minister also say to what extent one of the key issues raised by the noble Lord, Lord Laming, in his report will be addressed? There was a deep ignorance by professionals of data protection law in all the agencies with which Victoria Climbié was involved. When we are talking about even the minimal use of databases it is important that professionals understand both their powers and their duties to disclose information, even if that information is as minimal as the Minister has stated on this matter. I am happy to support the noble Earl, Lord Howe, particularly in view of the Minister's response to earlier amendments that the database is not simply to be used for child protection, but will have wider applications regarding promoting the well-being of children. That statement still causes me concern.
I rise to support the intentions of this group of amendments. In particular the propositions in Amendments Nos. 143 and 214 seem to be especially useful and sensible. The Committee danced around this issue of information accuracy in some detail in the preceding amendment. In that context, one of the perverse effects of databases is that, over time, inaccurate data can all too readily assume the status of fact. Allegations assume a life of their own to an extent whereby, even if they have been shown to be unfounded and that forms part of the data record, stigma is attached to the data subject. Almost instinctively it is a case of no smoke without fire.
Moreover, in circumstances where the recording of a particular rumour or allegation has not been annotated as being unfounded, or a flagged concern has not been removed, untold damage can be done to both the data subject and their family. On that basis, we can all accept the necessity of ensuring the accuracy of data. Indeed, that is enshrined in the Data Protection Act with the fourth principle stating that:
"Personal data shall be accurate and, where necessary, kept up-to-date".
That said, there is a problem. As drafted, the Bill intends to allow the recording of, it states,
"information as to the existence of any cause for concern in relation to", children. Obviously, we will address the merits or otherwise of the use of the phrase, "cause for concern", later, in the context of Amendment No. 148. I have no wish to pre-empt that debate. Nevertheless, the fact that it permits such a wide interpretation of what data and information could be recorded is a relevant issue.
Notwithstanding the Minister's insistence that no "opinions" will be recorded on the database, it would require practitioners in the field to record allegations, conjecture, gossip, even rumour as a basis for adding a flagged concern. In other words there is no way of telling whether the flag is rooted in fact or opinion. The flag itself becomes the opinion.
Evidence of the sort of data that might generate a flag can be adduced from the "reducing youth offending generic solution" or RYOGENS pilot, funded by the Office of the Deputy Prime Minister. It is being rolled out in Warwickshire, Lewisham and Tower Hamlets. A concise outline of its purpose appears on its web page. It says:
"RYOGENS is a pragmatic, web-based system that helps practitioners from different agencies to identify, assess, and refer vulnerable children . . . The system enables practitioners from multiple agencies to share information about children in a safe and secure manner".
Clearly, it is a precursor to the way in which the Government anticipate that databases established under Clause 8 may well operate.
Helpfully, the website tells us that one of the benefits of the scheme is that it,
"identifies, assesses and refers vulnerable children capturing concerns below statutory thresholds which would not otherwise be recorded".
In its implementation guide, we are advised that the "concerns" which should trigger an entry in the database are, for example,
"denies part in/does not believe/commits anti-social behaviour"; and,
"non-constructive spare time/easily bored"; and,
"negative home influence on education"; and
"criminal area of residence".
All of these and many others constitute legitimate reasons for entering a flag within the system. Moreover, it is explicitly anticipated that the "opinions" of practitioners will form the basis of flags within the database. At paragraph 3.5.3 of the information sharing guidance toolkit, "personal data" is defined as,
"facts or opinions relating to a living individual that can be identified by the data".
I readily recognise that the judgments that practitioners have to make on individual cases are exceedingly complex and difficult. Nor should we underestimate that. But the very nature of the RYOGENS process is that it relies on conjecture and opinion. Yes, informed and trained opinion, but opinion none the less.
Inevitably, in a strict sense, the accuracy of any data or information that is recorded within the system cannot be guaranteed. In other words, while I welcome the proposition contained in the amendment, I am unconvinced that in so far as RYOGENS is the template for what the Government have in mind, it can be secured either easily or effectively.
All in all, I shall be intrigued to hear from the Minister how the Government intend to guarantee the accuracy of any data held on the database they are proposing. In particular, how do they intend to guarantee the accuracy of flagged or signposted causes for concern?
I thank Members of the Committee for raising an important group of amendments. I say to the noble Baroness, Lady Barker, that nothing I see in them is in any way trivial. It is important that we address the concerns raised.
I also accept that part of what needs to be addressed within the Government's proposals—not within this Bill but beyond it—is ensuring that people understand their obligations, responsibilities and rights as regards the information-sharing by professionals. I fully accept the comment of the noble Baroness, Lady Barker, that one of the dreadful outcomes of the Climbié report was that people were unsure about sharing information. The provision is meant to be a tool to enable that to happen more easily and to set out the circumstances more clearly.
Amendments Nos. 136 and 211 would specify in regulations the information which may not be contained on the databases. Amendments Nos. 143 and 214 look to achieve accuracy in what we do. Amendment No. 155A raises the importance of cross-checking data in pursuit of accuracy. Amendments Nos. 147 and 216 would prevent the databases from recording details of the practitioners delivering services to each child.
I have indicated on several occasions today what we are seeking to put on the database in terms of the basic factual information to identify a child clearly. I have also referred to our commitment to bring forward a package of amendments for consideration on Report. They will include measures that will address the concern that more details should be included on the face of the Bill. One of these will be a list specifying the kind of basic data that should be included.
We want, if we can, to preserve some flexibility to enable other information to be specified through regulations where that proves to be useful or essential. Local authorities piloting information-sharing have identified other factual information which may be helpful; for example, a list of organisations and practitioners delivering services in a locality to children and the criteria they apply for offering services to children, can be helpful to practitioners in facilitating effective referrals. Noble Lords who have had an opportunity to talk to the Trailblazers will understand how important it has been to have such information available. However, I understand Members' concern that they should not be an extension of the way in which we address the broader implications of the information available.
The noble Earl's amendment focuses our attention on what should not be included. I reiterate that it is not our intention that case notes about children should be recorded on the database. Nor should the system contain data on the nature of concern that a practitioner might have. We accept that it is appropriate for a practitioner to share that information within the bounds of the common duty of confidentiality outside the database with other practitioners in a meeting or conversation. Those meetings and conversations take place now and this tool will enable them to take place more speedily and in circumstances in which they otherwise would not because practitioners would not have known about each other's involvement. I agree with what the noble Earl said about professional opinion. It is about people using their best professional judgments in some cases and I accept the issues which he rightly raised.
The noble Earl, Lord Howe, rightly said that subsection (5)(a) is widely worded and it suggests that case details could be entered, which we do not want to see happen. The government amendment we are proposing will change this to the name and contact details of any person providing services. We do not know how subsection (5)(b) will change, but we do not believe it contains the same suggestion about case details. We are listening to what noble Lords have to say on that subsection as our deliberations continue.
I turn to Amendments Nos. 143 and 214. They are intended to provide that regulations ensure that information held on a database is accurate. Accuracy of data is extremely important. And of course no information system will be 100 per cent accurate for 100 per cent of the time. But we have specified in the policy statement relating to guidance and directions on the operation of the databases that one of the functions of the person operating the database will be to commission the supply of core basic data and to ensure that it is cleansed and matched.
We know from the experience of the Trailblazer authorities which have gone or are going through the process that it is no mean feat and it must be done thoroughly. One of the advantages of using data from more than one source—for example, from LEAs, primary care trusts or Connexions—to populate the basic datasets is that the matching of data can help overall to obtain better coverage and accuracy.
We are also proposing that regulations provide that where a practitioner becomes aware of a change in the child's basic details—for example, a change of address—he should notify the database manager who will be required to amend the record. Similarly, regulations will provide for practitioners to update details where, for example, they cease to provide a specialist service to a child. Regulations will also provide both practitioners and the database manager with responsibilities of putting details of children not previously known or who have newly arrived in the area on to the database and in ensuring that records relating to children who are moving to a new area are transferred on to the database in that area—notwithstanding our earlier discussions on ensuring that that is correctly in place locally, regionally and nationally.
Of course that possibility can never be excluded where professional judgment is involved. However, through encouraging multi-agency discussions, it is more likely that an accurate overall assessment of the child's needs will be made. Contesting the professional judgment of any practitioner involves much wider issues than are raised by the existence of a new type of database. We will consider, in the light of experience from the Trailblazer authorities, whether the record of a concern should be retained on the system until the child's whole record is deleted or whether the information should be removed from the record after a defined period of time. I am keen to have Members' views on that. We are looking to see what makes greatest sense in the context of the Trailblazers' experience.
Amendment No. 155A raised the important issue of cross-checking and matching data. I am completely in agreement with the noble Earl, Lord Howe, that ensuring that information held on the database is accurate and up to date is extremely important. This will include cross-checking between databases. I am happy to accept the spirit of the noble Earl's amendment. As part of our undertaking to provide a package of amendments at Report, we will look at including in subsection (9)(e), comparison as well as transfer of information between databases.
I turn to Amendments Nos. 147 and 216. What I have tried to indicate this afternoon is that it is often the case that when information for a range of sources is put together, a child can be seen to be in need—or occasionally at risk. I have indicated the minimum core of information that we believe should be on the database to enable practitioners quickly to discuss the child's overall needs and, more importantly, how best to meet those needs.
These amendments do not recognise the importance of this function which we believe is fundamental to the added value of the proposed database. I reiterate that this is intended not to be a system focused primarily on those children who require protection from harm, but especially on children in need—those children who need, at some point, specialist services in order to thrive. It is not a substitute for a child protection scheme. It is very important that we think of this as our big opportunity to move our services on to prevention and to look at the needs of children in the round. It also aims to identify children missing education who do not appear to have access to primary health care. Inclusion of details of the practitioners delivering basic and specialist services to each child is therefore fundamental. I hope on that basis the noble Earl will feel able to withdraw these amendment.
Before the Minister goes away to consider the content of government amendments to be tabled on Report, would she think about the need for continual revision of these databases so that they do not become obsolete? This seems all too likely to happen, given that we are looking at the whole age range of a child from birth to 18. In that context, would she also consider whether the whole system should be scrapped when a person reaches the age of 18 or some other age?
The answer to those questions is yes. We are coming on to talk about the age at which the system would cease to operate for children. We are also about to discuss some of the issues about vulnerable children being able to be transferred on—children with learning difficulties, for example. However, I accept completely what the noble Lord has said about revision and updating of the databases being critical.
Once again this has been a useful debate. I thank the Minister for her reply. I also thank my noble friend Lord Northesk for what he had to say about flags of concern. I thought his comments were very apropos. I wholly agree with the observations he made about the inherent dangers in posting a flag of concern which is designed to reflect someone's opinion rather than strictly a matter of fact. We shall come back to this issue later.
I was considerably reassured by the Minister's commitment to amend subsection (5)(a). That lays to rest the spectre of the rather more lurid scenarios that I painted earlier. I also welcome her intent to table a further amendment to subsection (9) to the effect that the comparison and transfer of information would be included within the scope of the guidance or directions.
I listened with some scepticism to the Minister's stated wish to preserve a degree of flexibility in the way that the clause was translated into regulations. Flexibility is a perfectly honourable aim in most circumstances but at the same time it sent a slight chill down my spine. It all depends on how much scope there is for moving outside the envelope of factual details we have been discussing. We shall look at that very closely.
If I have a residual concern apart from that, it is in relation to the number of practitioners whose names might appear on a particular child's data file. Is the Minister saying that if a child has been to a particular clinic and looked after by a certain specialist, that that specialist's name might also appear on the child's file? That information could tell a story. It does not matter that only the practitioner's name appears. Anyone sufficiently well informed might be able to diagnose from that name the kind of thing that child had been treated for or advised on. There is a danger that while specific details of treatments given to children will not appear—and I accept all the Minister said about that—someone with average intelligence might be able to paint a fairly accurate picture of a child's case history. That, too, is an area on which we shall need to focus. I am willing to let the Minister make a further comment about that if she wishes to do so.
We shall be able to tease that out a little more when we consider the next group of amendments. The noble Earl makes an absolutely valid point about sensitive information. I did not want him to think I was unwilling to respond. It is simply that it comes up very neatly in the next group of amendments.
As the Minister indicated, we again reach one of those issues where principle and practice come closely together and where either can be of equal concern. The amendments are designed to probe the aspects of this clause which have caused a great deal of concern, namely those in subsection (4) which refer to the requirement by regulation,
"permitting or requiring the disclosure of information in any such database", and,
"permitting or requiring the disclosure of information included in any such database".
It will come as no surprise to noble Lords that a number of professionals, whose work with children is confidential and sensitive, have expressed a great deal of concern about including the most basic information on their involvement with such children. Not surprisingly, we have had representations from organisations such as the BMA. These have been very much along the lines of the speech just given by the noble Earl, Lord Howe. Let us take as an example a child being referred to a child or adolescent mental health service. The noble Earl, Lord Listowel, summed it up well earlier when he spoke about inferential information, from which inferences may easily be drawn. The noble Earl, Lord Howe, was absolutely right that, once one goes beyond the name of a particular health service or health body potentially to individual practitioners, the nature of that inference becomes far more specific, possibly enabling people to make deductions.
Children are extremely sensitive and very clued up about precisely that kind of thing. Many years ago when I was involved in a children's summer play scheme, I remember that the kids used to talk regularly about other children not being there that day because they were off to the "barmy unit". They knew exactly what that meant. This matter takes us into an area where it is difficult to distinguish between factual and sensitive information.
I reiterate that there may be times when a professional does not reveal that he is working with a child for reasons of child protection. Organisations which have concerns about domestic violence, for example, have told us that even the most basic of information about where a child is and which services are being used could potentially be very dangerous for some children.
I shall underpin my arguments on this amendment with an argument which runs throughout my concerns about the whole of this clause. Studies of incidents where children have died often reveal that, in fact, agencies do know that they are all working with the children. Notwithstanding databases and simply relying on old-fashioned methods, they know who is working with whom. But they do not know what those agencies do with the children. As that information will not be recorded on the database, one returns time and again to ask what its value will be. For a number of professionals, the requirement to put information on the database may be, for them, a step too far and that may lead them to opt out of the system so far as they possibly can. I beg to move.
Like the noble Baroness, I am very troubled by the thought that professional relationships, hitherto characterised by the utmost confidentiality, could be put in jeopardy by the regulations under this clause. As she said, there is already a common law duty on doctors to release confidential information without consent where there is perceived to be a risk of harm to a child. I have no difficulty with that. However, I do have difficulty with the requirement for a doctor, teacher, solicitor or anyone else to release confidential information where it may not be in the child's best interests. The consequences of doing so will be an immediate haemorrhaging of trust between the child and the professional, or, indeed, between adults and professionals where information about an adult is seen by the professional as being relevant to a child's well-being.
We do not want, on any account, to see a person being afraid to discuss a mental health or sexual health problem with his or her doctor because of the thought that the doctor may feel the need to report the person's child as being at risk. Unless we are very careful here, we are looking at the statutory steamrollering of professional ethics, and we cannot have that.
One has to ask how wide the net will be cast. I do not know whether the regulations are intended to require or authorise a solicitor to disclose information to children's services authorities, notwithstanding the professional duty of confidentiality and the common law duty of legal professional privilege. Perhaps the Minister could clarify that point as well because it is one that has been raised with me. I should like to hear the Minister's explanation of why the words "or requiring" have been inserted here and exactly what significance they have.
Perhaps I may turn briefly to Amendments Nos. 137A and 139A, which are grouped with Amendment No. 137. It is important for it to be clear on the face of the Bill exactly which persons and bodies should participate in the information-sharing arrangements under Clause 8. The list of bodies and persons in Clause 7 is extensive. Their relevance to the aim of ensuring the well-being, and safeguarding and promoting the welfare, of children is, I believe, accepted. If the Government intend to allow other people or bodies to participate in the data-sharing arrangements, in my view, that should be explicit on the face of the Bill.
Again, I am grateful to noble Lords for raising important issues concerning the use of professional judgment when making decisions about disclosure.
In part, our purpose behind this part of the clause is to ensure that the information-sharing aspects are carried out in a consistent manner. That means primarily that we ensure full coverage of children and young people. We consider that to be very important if the databases are to deliver benefits which are preventive in nature, helping professionals to identify the children they are dealing with; for example, as I indicated previously, whether or not they are in education or whether other practitioners are involved with a child. Therefore, we believe that it is right to require certain information to be included on the database and right to require it to be shared with other users in order to minimise the chances of a child falling through the net—for example, the basic data that I indicated, which, in a sense, form the backbone of the database.
We fully understand noble Lords' concerns about the need to preserve the trusting relationship that professionals have with the children, young people and parents with whom they work and about the fact that incredibly sensible issues are being dealt with by some of our professionals. That is why, for example, we have ensured that no detailed case notes will be on the database.
In order to indicate how far we are looking to see what will work best in those areas, I want to say something about what the Trailblazers have been doing in relation to this critical issue of sensitive services. The system being piloted in Sheffield allows people to log involvement but to do so invisibly; in other words, certain practitioners can see other practitioner involvement but cannot be seen themselves when they go on to the database. Therefore, the fact that they are working with a child remains entirely confidential, but they are able to see other practitioners who may be working with the child. The noble Baroness looks puzzled. If you are dealing with extremely sensitive issues in relation to a child, you may want to know who else is involved but you may not want others to see whether you are involved.
A system is being tested in East Sussex which involves logging invisibly when disclosure would not be in the child's best interests. Such cases can be seen only when a child protection threshold has been reached. In other words, precisely as the noble Earl and the noble Baroness indicated, it enables distinctions to be made when it is not in the best interests of a child to be seen to be part of a database. However, if issues of child protection arise, that information will be more widely available.
In Camden and Leicestershire, sensitive practitioner involvement can be seen only by certain people. Therefore, the lead or very senior professional is able to see who is involved on the database but other professionals cannot do so. In Leicestershire, a scheme is being piloted in which children can consent to information being shown only to some practitioners but not to others; for example, they can specify that it cannot be shown to the police. Again, that is overridden only if a child protection inquiry is under way.
I have given those examples very sketchily but I am happy to provide further information on them to show how the Trailblazers are considering the issue of sensitive information and, in a sense, the threshold issues around child protection, where it will be potentially important to be able to share that information. That would allow different gradations of professionals in some cases or different professionals to get on to the system but not to be seen on it in order to protect that sensitivity. Equally, as I have described, in Leicestershire the child plays a part in that and can say, "I do not want my details to be shown". That would be overridden only where child protection is concerned, which I think noble Lords would recognise as important.
We are looking at these important areas. We are trying to ensure that we are very careful in how we set up the arrangements to deal with these sensitive issues. We want to listen to what noble Lords have to say to see how best we might take this forward, and also again to allow the Trailblazers to be able to talk to noble Lords. As I have said, I am happy to supply more information specifically on the examples I have cited, because these are important issues which we want to ensure we have dealt with properly.
Amendments Nos. 137A and 139A seek to ensure that only those persons and bodies listed under Clause 7(1) will be required or permitted to disclose information. Noble Lords have already indicated that the Government's policy statement on regulations within this clause sets out those persons or bodies we envisage will be required or permitted to disclose information. It is now our intention to table a government amendment on Report that will list those persons and bodies on the face of the Bill. The policy statement sets out very clearly which persons and bodies those will be.
The government amendment will retain a little flexibility to allow the Secretary of State to add other bodies or persons to allow for such situations where new bodies are created that would have important information for inclusion on the databases, but that would be subject to the affirmative resolution procedure, which I hope will deal with any issues of concern which noble Lords have.
Regulations will also provide that where practitioners are providing a specialist service they will be required or permitted to record their involvement on the system. As I said, we are considering carefully the Trailblazer authorities, and regulation will define which types of practitioner and which services are covered by this requirement. Again, that will be subject to the affirmative procedure.
It is worth saying that the amendments would prevent independent schools, for example, from contributing crucial information. Noble Lords will know that approximately 7 per cent of children are educated in the independent sector. We think it is vital that the database holds information about all children in order to be able to promote and safeguard their welfare.
I hope that noble Lords will feel reassured by our commitment to list the persons and bodies that will be required or permitted to disclose the basic information. I reassure noble Lords that concerns that professionals must be allowed to make professional judgments are being considered and consulted on in great depth with a view to informing the regulations which, as I have indicated, will be subject to affirmative resolution and therefore will give the opportunity to consider the detail of what inclusion or sharing of information will be required as well as what will be permitted.
I undertake to give further details to noble Lords about the work of the Trailblazers in dealing with these very important issues of sensitivity, not least in ensuring that young people are not put off from using services because of a fear they might have—misinformation is an issue that we always have to deal with and we must ensure that young people do not get misinformation—and of where the Trailblazers are in terms of looking at how best we can safeguard those issues while always ensuring that they can be overridden if a child was at serious risk of harm. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
I was interested to hear the Minister mention information-sharing schemes in Sheffield, East Sussex and Leicester. Perhaps I may invite her to write to me to say whether they arose in the context of either the trafficking or smuggling of children into and occasionally out of this country. When replying, perhaps she would say whether the experiments and schemes she mentioned were possible under existing children's legislation or some other kind of legislation?
The schemes to which I referred are the Trailblazers, which we have set up. They do not specifically come from any angle, such as issues of trafficking. They are particular authorities which have undertaken to consider the issues noble Lords are debating today, such as sensitivity and so forth, and how best to develop the right kind of database. They can do quite a lot of what they want to do under existing legislation. Primarily, the issue is that they do so only with consent. Therefore, they have issued the relevant notices across communities. It is important to ensure that we can join up the databases. We need to provide within regulation to be able to do that right across the country in a way that is most appropriate. For example, if a family were to withhold consent and experience suggests that that could be specifically because there are issues of child abuse and child neglect, at present that could not be included and we would want to ensure that it is.
There is an important point which I should like to pick up. It harks back to debates we had some two years ago on the Health and Social Care Act, in which the noble Baroness was not involved. Section 60 of that Act covers the current provisions relating to disclosure of confidential medical information to cancer registries and elsewhere. We were all reassured by the statements of the Minister at the time that the tightest possible conditions would apply and that there would be no possibility of information that should not be disclosed being disclosed or of a patient who did not wish his or her information to be disclosed having those wishes overridden.
I have recently been made aware of some shocking breaches of those undertakings. It is shocking to me because even when the patient's request not to have her details disclosed was brought to the attention of the cancer registry, it still went ahead and disclosed it, citing Section 60 of the Health and Social Care Act as the legal basis for so doing.
It seems to me that the arrangements we put in place here have to be watertight. There should be no room for doubt or uncertainty. I sound that warning because there is precedent. I shall write to the noble Lord, Lord Warner, about the case I mentioned. I do not need to take it further with the noble Baroness, Lady Ashton. However, it is pertinent to this whole area of data sharing.
I thank the noble Earl. Regardless of the fact that he will pursue this matter with the noble Lord, Lord Warner, I would be interested to see what happened in those circumstances and whether there is anything further we need to do in relation to this database.
I thank all noble Lords who have taken part in the debate. It has been a very important matter on which to spend some time. Perhaps I may say to the noble Baroness that as with most of the amendments we have discussed today, I was in part reassured by her answer and, frankly, in part alarmed by it. Albeit I understand the very brief outline she gave, the part which alarmed me concerned shadow practitioners, and so forth.
I would welcome a lot more information about those four pilots and the way in which they include some professionals and not others. I welcome the potential for children to make clear that they do not, under any circumstances, wish particular professionals to have information about them.
I believe that this is a problematic area. One of the biggest flaws of the whole clause comes to a head here. In the absence of a statement of principle on which this clause is founded, one can easily envisage different circumstances in which the clause would perhaps unintentionally work to the detriment of children.
I listened to what the noble Earl, Lord Howe, said about Section 60. No one would wish to go back to those debates, but I can understand that the temptation to say, "I told you so" is very great. How medical information can be disclosed is a very big concern. What does a paediatrician do if he has a concern? Perhaps his concern is that the family are Jehovah's Witnesses and there is a blood-related condition in the family. He would rightly be concerned. Should that be disclosed?
I am not yet convinced that this provision is right or that the word "balance", which the Minister uses, has been properly circumscribed. I believe that the balance is between tests and thresholds for disclosure and that Ministers have to pay that price for flexibility. I remain convinced that the balance is well and truly not right. Perhaps the noble Baroness might like to have that debate with the noble Lord, Lord Hunt. It is one with which he is very familiar. At this stage, I beg leave to withdraw the amendment.
In Amendment No. 139 I return to the question of the role of parental responsibility in our society and the effects of the register on those with parental responsibility.
What I could have guessed, and was not smart enough to notice, was that the noble Baroness, Lady Walmsley, sneaked in two amendments under Clause 7, which deal with the issue. What was even more stupid of me was that I was out of the Chamber having a cup of tea when they were dealt with and I did not hear what the Minister said.
However, I am given to understand that the noble Baroness said that parents will have access to the database and can comment on it. The Minister nods her head. Therefore, I shall not go over the arguments I was going to cover. I simply want to ask a couple of questions. First, how will parents know whether their child's name has been flagged on the register and therefore have the interest to go and look and make sure that the entry is reasonable and, if necessary, to challenge it?
Secondly, if parents ask to see the entry on the register will they simply see a flag saying, for example, "concern by medical adviser" or will they have access to the underlying information which would be available to other professionals if asked for?
Thirdly, will different coloured flags indicate the extent of the concern, or is there simply one flag and the extent of the concern only arises when an inquiry is made?
I have one other question. Will the flags be dated? A flag could be put against a child aged three and at the age of 17 it would still be there. That obviously would be absurd.
Another issue I should like briefly to address is the problem of malicious information. I do not think we have seriously discussed malicious information and I do not think that I can justify doing so under the amendment, but I believe it is a serious issue, particularly in the context of family disagreement. I am afraid that in America it is quite common when a man tells his wife or partner that he intends to leave her for her to tell the police that he has been abusing the children. That kind of thing can lead to misinformation and it may be quite difficult to refute.
I have one final issue which I should like to raise in connection with parents and their children. In Amendment No. 146 in the name of the noble Baroness, Lady Walmsley, subsection (b) draws attention to the difficulty which arises as a child grows up. As he grows up he begins progressively to take more responsibility for decisions in life. At the same time his parents still have responsibility for his welfare up to the age of 18. There is a need to think more closely about what we mean by parental responsibility. The very broad definition under the Children Act 1989 does not give parents a fair chance to know what they are expected to do. If children are to have rights of confidentiality to information about them, it seems to me that parents' responsibility must be consequentially reduced. Therefore, in that context issues such as parents being sent to prison for children not attending school or for anti-social behaviour must be looked at again. I beg to move.
I support the amendment of my noble friend Lord Northbourne. The Minister said that she was looking to the whole of this index as support for children in need. One of the real worries is that it may begin to be seen as children in trouble. There will be a register spread around the country or one entire register, whatever it is. I should have thought that that would be a plus in a way because all children would then be on it. However, if only certain children are flagged up with these comments that sort of inference will be drawn and it will be known about within schools and so on.
Looking at the whole matter from the point of view of families, I should like to ask the noble Baroness, what more can be done to encourage families, parents and carers to think of the database as helpful in their role of parenting. It would be useful to know how much access they will have, and when, to what is on the register about them and their children. I hope that over time we will get used to it. Noble Lords have had very grave reservations about this sort of approach and no one could have listened to the debate today without realising how genuine those worries and concerns are. I should like to think that we shall reach a time when parents, families and the children—the point was made about the moment at which the children take over their own responsibility—will feel ownership of this particular process.
I should like to ask the Minister to give a little explanation of how she sees the matter developing, particularly with parents whose children may well be in need as well as possibly being problem children. How can they feel more involved in the process when perhaps they will not necessarily be the ones to ask to see the database itself?
I gleaned earlier from the Minister's remarks that local authorities will have a large part to play in deciding who has access to the database. I look forward to her response. It would be helpful to have more information about how foster carers, residential childcare workers and children's home managers might fit in with those people who can have access to the database, as well as adoptive parents—except those with parental responsibility for a child away in that context.
I am grateful to noble Lords who have spoken about the critical issue of parents. I hope that the noble Lord, Lord Northbourne, enjoyed his cup of tea. I am sorry that he missed my remarks earlier. I am looking forward to my own cup of tea before too long.
We want information databases to improve and not reduce the ways in which practitioners work with families. Practitioners should always involve the parents of the child they are working with or the person with parental responsibility—to cover some of the issues raised by the noble Earl, Lord Listowel, about foster carers, adoptive parents, step-parents and so on.
That is why we want the name and contact details for the person or persons with responsibility for the child always to be recorded on the database to help facilitate precisely that conversation. We do not think it is necessary to include such an amendment, because a parent's right to see information about their children held on the database is already provided for under the Data Protection Act, which is important.
We intend that parents and young people in areas to be covered by databases will be informed that databases were being set up, of how they will work and in broad terms what information will be included on them and which types of professionals will have access to that information. For example, in many of the local authority areas that are piloting, processing notices have been issued explaining the new arrangements.
We intend to issue guidance on good practice in informing people about the purpose and operation of the database in any wider role that it would take part in as a result of the clause. We will ensure that people know what is available to them.
The broader questions raised by the noble Baroness, Lady Howe, require a longer discussion than I can give on day four of Committee on Clause 8. I am always mindful of time, not least when the Chief Whip has appeared at least twice in the past half hour. But I take her point about making sure as part of what we are doing that we are being clear about the need to involve parents at all stages and we are considering the Bill closely to ensure that they are not forgotten, as the noble Lord, Lord Northbourne, feared.
We will also consider how the database can be viewed positively. That is critical; misinformation can lead to all sorts of problems, not least young people feeling that such databases are a hindrance rather than a help in trying to support them. We are not at the stage of having detail about coloured flags. There will certainly be information about the date of access to the database and, as I understand it, parents have access to all of the record except those matters that under the health modification order young people are entitled to assume were given in confidence. The noble Lord will be familiar with that provision.
If I have not answered any other queries raised I shall of course write to noble Lords setting out information, particularly on residential social workers, which I realise I have not addressed properly. I want to check and make sure that I put my reply correctly, because I am not sure that they would be classified as having parental responsibility, but there may be circumstances where the manager of a children's home does.
I hope that on the basis that I have been clear that we want to inform people about the databases and ensure that they understand how they work, and have recognised the broader questions raised, the noble Lord, Lord Northbourne, will be able to withdraw the amendment.
I am extremely grateful for that helpful and encouraging response. I particularly endorse what my noble friend Lady Howe said. There might even be scope for asking people with parental responsibility to contribute to the database in order to give them a feeling of involvement. On that basis, I beg leave to withdraw the amendment.
In moving the amendment I shall speak also to Amendments Nos. 141, 212 and 215. The questions raised by the amendments have been covered already to a degree by the Minister, so I do not intend to spend an undue length of time on them.
One of the obvious questions about the databases is who will be allowed to access them, and importantly, who will not be. If a local authority creates a flag of concern about a child, we surely would not wish to say that any employee of the local acute hospital trust should be allowed to read that child's file. On the other hand, if the child were to present to A&E with suspicious bruising we should certainly expect the doctor on duty to access the database to see whether it held any information that might serve to put his concerns and suspicions into a broader context.
Equally we cannot allow people to surf the database for want of anything better to do on a Saturday afternoon. There needs to be a gateway mechanism that asks the question, "Who are you and what is your interest in seeking to access the database?" and records the reply. That in turn will create an audit trail.
Unless there is a gateway and such an audit trail excessive numbers of people will access the database when they have no business in doing so and they will not be found out. Without an audit trail we will also have the opposite and equally serious problem that there will be no protection for professionals who access the database justifiably and legitimately and who need to prove at some later date that they have done so.
Will the Minister answer a few questions? She has already answered the first question in part; at least, I know that this idea is in her mind and in that of officials. Do the Government envisage any sort of graduated system such as that to which she referred on the previous group of amendments whereby certain people have an unrestricted right of access to the database, others have limited access and everyone else has none at all?
What systems will be in place to ensure that unauthorised persons are not only prevented from accessing information but also do not somehow obtain it from someone who has accessed the information legitimately? What regulations will govern the way in which an authorised person is allowed to use the information that he or she acquires? It is clearly not acceptable for an employee of a local authority to pass on details about a child's address or school to someone who is not authorised to have that information and who has no interest whatever in safeguarding or promoting the child's welfare. How is that system of restricted access to be enforced and policed?
One of my worst fears is that in practice the creation of the databases will result in a free-for-all, however tightly the rules are drawn up. I beg to move.
I wish briefly to ask one technical question, fairly confident in the knowledge that the Minister will not be able to answer it. Is it correct to assume that a database created to permit the flow of information between up to 13 different agencies, each of which will have an existing system, will by definition have to be compatible with all of them?
If that is the case, is it likely that that system will be a generic computer system? Is it therefore right to assume that it will be easier for someone with technical knowledge of computer systems to access it than it would be a bespoke system? I pray in aid the noble Earl, Lord Northesk, whom I am delighted to see in his place. I do not expect the Minister to answer me—indeed, I hope that she will not do so in any great detail—but I raise it as a concern that a number of noble Lords might wish to pursue, when we are not in Committee.
I almost cannot resist the temptation. Inevitably, I support this group of amendments. The issue of security of database systems is decidedly fraught. Indeed, it lies very near the top of my list of objections to the whole proposition of Clause 8. It is almost inevitable that any database devised would need to be web-based, if only to ensure that the system can communicate both within and among the relevant agencies. In turn, in all probability, that will necessitate the sharing of information across disparate computer systems; for example, as with one local authority communicating with another.
That is difficult enough to achieve in its own right. It is very much more difficult to achieve in a way that guarantees the security of the data. Not only can data be corrupted as they are transferred from one system to another, but, as I understand it, there is also the critical vulnerability to interception at the point of transfer. So this is a really live issue for the database.
Again, these are very important issues concerning the database. We are very clear that access to the database should be restricted to designated individuals who are professionals delivering statutory or non-statutory services to children, who have direct contact with children or who have responsibility for managing the database itself.
I have a slightly different speaking note, which refers back to a group of amendments that we have not yet covered: the noble Lord, Lord Northbourne, very kindly degrouped his amendment. I suspect that we shall break shortly. But, had we debated Amendment No. 145, I would have already said—but I shall say now—that it is our commitment to bring forward a government amendment to remove the power of the Secretary of State and the Assembly at subsection (9)(a) to determine the conditions of access in guidance or directions and instead provide for such conditions to be set out in regulations. I think that will help Members of the Committee to feel more secure about what we intend to do about access and so forth.
We intend to ensure that this will apply to named individuals and that there will be no blanket access. I recognise some of the points that were raised by the noble Earl and the noble Baroness regarding ensuring that the database system is as secure as possible. It is our intention to achieve that. I also recognise the noble Earl's point about the critical point at which we can ensure that we have developed a system that is as hacker-proof—if I can describe it as such—as it can be.
We can be sure about two things. First, the professionals who are designated will be designated. They will be named professionals who are able to access the database in respect of the children that they are responsible for looking after. That will not be a generic responsibility. Again, some of the work by Trailblazer has been interesting, such as looking at iris recognition, fingerprint security and six random questions popping up as people go into the database. The questions would be known only to those people accessing the database and would be applicable only in that local authority area for those particular professionals. There will be all sorts of measures of security.
The noble Earl will probably say that people can get into NASA and the FBI sites. I accept that it is difficult. But I also argue that, first, we would be putting minimal information and, secondly, we are looking to do that in a way which counters those who might attempt to get into the database. That is not least because of the constant looking at the database to see points of entry and to look at the way in which the database is used.
There were some technical questions, which, as Members of the Committee rightly identified, it is not for me to be able to answer. I shall, of course, ensure that I provide further information on them. We want to ensure that they are subject to stringent controls. We want to ensure that we are very clear about those people who will have access. We will be looking to develop that so that we can produce guidance and directions on the system, including security issues.
I have also referred to the audit trails, which will identify how people have been accessing the databases. That will enable us to check for any emerging patterns of potential abuse so that they can be dealt with.
We need to specify that the conditions relating to the security of the databases be set out in guidance and directions in order for us to be able to look at the nature of the design and the technical specifications that will be developed over the coming months. The noble Earl will know better than I that information technology is a fast-moving world. We need to build on the experience of the Trailblazer pilots and the detailed work that we have commissioned, in terms of the technical specifications. Any systems of course will comply with relevant e-government British Standards that relate to information security, management or other national standards or specifications.
We also need the flexibility for secure user access. The policy statement says that persons operating the database must comply with any specified user authorisation mechanisms. I have indicated some of them. Passwords, electronic keys, biometric identity verification or personally known data and other information might be included. There could be others in the future. Again, this is a fast-changing world where we would want the flexibility to decide what the appropriate mechanisms might be once we have decided on what the system should be.
I understand the concerns that have prompted the amendments. I hope that we can reassure Members of the Committee that conditions of granting access will be tightly drawn. Individuals will need to meet minimum requirements. They will need Criminal Records Bureau clearance; they must sign a relevant practitioner-level protocol; and they must have undertaken training on safe and secure use of the system, including compliance with the Data Protection Act, the Human Rights Act and, where relevant, the Caldicott principles.
With the reassurances that I have given about how we will take this forward and my promise to write about the more technical details, I hope that the noble Earl will feel able to withdraw his amendment.
I am grateful to the Minister. She has explained how security will be delivered against external hacking. I should be intrigued to know what the Government have done to assess the risk of internal hacking; that is, those with express authority to access the data who then exceed their threshold of access.
First, the audit trail is about monitoring people where there are patterns of use that one might be interested in to see whether they indicate something further; that is, abuse of the system. Secondly, Trailblazer has looked at requiring different levels of information—different passwords, different security systems and so forth—to allow different levels of access.
We are planning that the accessibility of the system is for professionals who are dealing with particular children. Security also needs to look at the professionals not being able to access information more widely on children with whom they should not have any interest. Again, I am happy to elaborate on that for the noble Earl. It is an important area.
Once again, that was an extremely helpful reply from the Minister. The Committee can be largely reassured by what she had to say. Clearly, I and others will wish to read her reply carefully in Hansard. But I am most grateful to her for the trouble that she took in responding to our key concerns about the security of systems and the need to maintain tight control on access.
We may need to return to this in some form on Report. But, in the mean time, I beg leave to withdraw the amendment.
I beg to move that the House do now resume. In so doing, I suggest that Committee stage does not resume before half past eight.