Clause 111 - Inquiries by local authorities into representations

Adoption and Children Bill – in a Public Bill Committee at 5:30 pm on 15 January 2002.

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Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 5:30, 15 January 2002

I beg to move amendment No. 260, in page 62, line 18, at end insert—

'(3B) The duty under subsection (3) extends to representations (including complaints) made to the authority by—

(a) any person mentioned in section 3(1) of the Adoption and Children Act 2002 (persons for whose needs provision is made by the Adoption Service) and any other person to whom arrangements for the provision of adoption support services (within the meaning of that Act) extend,

(b) such other person as the authority consider has sufficient interest in a child who is or may be adopted to warrant his representations being considered by them, about the discharge by the authority of such functions under the Adoption and Children Act 2002 as are specified by the Secretary of State in regulations'.

The clause relates to the changes that the Government are making to the local authority social services complaints procedures. Those procedures have been criticised by the hon. Member for North-West Norfolk, who suggested, perhaps rather unreasonably, that local authorities always set out to stymie complaints. That might have been an extreme criticism, but the procedures have been criticised for being too slow and bureaucratic.

The Government want to speed up the process and make it more effective, particularly for children. That is why the Department undertook a review of social

services complaints procedures in 1999-2000. Following that review, the Department issued a consultation document, ''Listening to People'', in June 2000. That document proposed a range of improvements to the procedures and sought views on them. As a result of that consultation, the Government will make several changes to the procedures, many of which do not require primary legislation. However, in response to the consultation exercise, clause 111 changes the complaints procedure established under the Children Act 1989; it implements the changes that require primary legislation.

It is worth remembering that the Committee has already debated clause 12, which introduces an independent review mechanism concerning adoption. That mechanism is being established, as we discussed, for two specific purposes. It will be used to review adoption agency determinations on the suitability of prospective adopters, thereby building confidence in the adopter-assessment process and encouraging more people to adopt. It will also be used to review determinations made by adoption agencies about the disclosure of information held in their records that identifies third parties. As we discussed last week, that will provide a balance for the adoption agencies' use of discretion on the subject.

Adoption is a mainstream social services function. The majority of complaints about local authority adoption services will therefore most appropriately be dealt with through existing social services complaints procedures. Local authorities operate two distinct but similar complaints procedures in respect of their social services functions. The National Health Service and Community Care Act 1990 inserted into the Local Authority Social Services Act 1970, which is known as the LASS Act, the requirement for social services authorities to establish a complaints procedure for any failure to discharge their social services functions. Section 26(3) of the Children Act 1989 requires all local authorities to establish a procedure to consider representations about the exercise of their functions under part III of that Act made by or on behalf of any children looked after or in need. Therefore, local authorities have a dual process for considering complaints, provided for partly by the LASS Act and partly by the Children Act.

Under the existing legal framework, adoption-related complaints are dealt with by the adult complaints procedure established under the LASS Act. The Government do not believe that that is the appropriate procedure to consider all adoption-related complaints. In some cases, it is appropriate for complaints about local authority adoption services to be dealt with through the adult complaints procedure. When a complaint is made by an adult and does not involve or affect an individual child, it is appropriate for the local authority to use the procedure. However, when children are involved or affected, complaints about local authority adoption services should be dealt with through the Children Act complaints procedure. A complaint made by a child himself or on his behalf should, of course, also be dealt with through that procedure.

It might help if I gave other examples for which the Children Act procedure should be used, as would be achieved under my amendment. A complaint made by an adoptive parent about the package of adoption support services provided to the adoptive family by the local authority should be dealt with through the Children Act procedure, as should a complaint made by a birth parent about a decision taken by the local authority that adoption was in the best interests of his or her child.

The Children Act procedure offers a better process for complaints that involve children than that of the LASS Act, as it involves an independent person to oversee the process and has tighter time scales, which allow children's complaints to be dealt with more quickly. The amendment inserts new subsection (3B) into section 26 of the Children Act. It extends the child-focused Children Act complaints procedure to specified local authority functions under the Bill.

The Government intend to prescribe in regulations the types of adoption-related complaints to which the Children Act complaints procedure should apply. As I have explained, they will all be adoption-related complaints that involve or affect children, or which involved or affected them. Other adoption-related complaints that are not prescribed in the regulations will continue to be dealt with through the LASS Act procedure, as under present arrangements. The Government will issue guidance to local authorities to assist them to determine which complaints procedure should be followed in each case.

All the people listed in clause 3(1) will be entitled under the Children Act procedure to make a complaint about the specified local authority adoption functions. Those people are

''children who may be adopted, their parents and guardians'', prospective adopters and adopted people, their adoptive parents, birth parents and former guardians. Other people who receive adoption support services from the local authority, such as members of the wider birth family and adoptive siblings, will be able to complain under the Children Act procedure when a child is involved or affected. Similarly, those whom the local authority considers have a sufficient interest in the child concerned, such as its grandparents, will be able to complain.

The provisions are sufficiently flexible to enable adoption-specific requirements to be introduced into the Children Act complaints procedure through regulations, should that be considered appropriate. We will also consider whether it is necessary to introduce any adoption-specific requirements into the adult LASS Act procedure. If it is, we will issue directions accordingly. That will ensure that the local authority social services complaints procedure is as well equipped as possible to meet adoption-related needs.

Given the proposals in clause 111, which improve the breadth and operation of the Children Act complaints procedure, and the fact that the amendment ensures that those procedures apply in

appropriate cases to adoption-related complaints, I hope that hon. Members will feel able to support the amendment.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 6:00, 15 January 2002

I am yet again impressed by the way in which my hon. Friend the Minister has moved an important amendment to such a vital Bill, but does she feel that the amendment and the Bill go as far as we could go? The Government are doing a tremendous job in revising the Children Act, which is what the amendment will do. They have amended it through the Bill and other legislation, such as the Children (Leaving Care) Act 2000, and those changes have put some significant resources into improving the care system. The Government are improving the training, support and standing of staff who work in the system, although there is still a long way to go.

The other important way in which the 1989 Act needs to be developed is in empowering children in the care system, whether they live in residential or foster care, under special guardianship, in adoptive placements or anywhere else. During the past few months in Committee, we have heard a great deal about the rights of the various players in the complicated adoption process, and about the various abilities of people to appeal and make representations. This morning, the rights of potential adoptive applicants were likened to those of people who might want to put up a garden shed. That is all well and good. The adults in the system need opportunities to make representations. However, the most important—and most powerless—people in the process by far are the children.

Is it not time to make a significant amendment to the Children Act by introducing in this Bill a right of independent advocacy for children in care? The Government are well aware of the implications of children living in the care system, where their voices are not heard, their concerns are not properly addressed and they are not empowered. We have seen scandalous situations in care over past decades and we know the appalling conclusions of the Waterhouse inquiry. There are investigations across 17 police authorities into the treatment of children in care.

Surely one of the major lessons to be learned is that children's voices must be heard; children in care who have a concern generally tell the truth. Those children know what is going on. They have a profound understanding of what is happening to themselves in the system, but they need consistent support. Local authorities must have a duty placed on them to ensure that children have that consistent support to enable their voices to be heard. There needs to be a statutory right of independent advocacy and a complaints system that is not time-limited—because complaints from children are tremendously dependent on their age, their maturity, their living situation and their awareness of what they can do to address the problems that they experience. They also need the decisions of adults in the system to be frozen while their situation,

complaint or the problem that they are trying to have addressed, and the actions of local authorities, foster carers and potential adoptive parents are reviewed.

The Government are going a long way in this important Bill, particularly in the amendment to the Children Act complaints procedures, which addresses the crucial issue of empowerment. Introducing a statutory right of independent advocacy for children in care system will profoundly improve what is on offer.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

It might be appropriate for me to respond to some of the points made by my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) and to spell out the effect of the amendments to the Children Act that are made through the clause. I have outlined concerns that have been expressed about the bureaucratic process involved in local authority complaints and mentioned the need to widen and streamline some of the provisions in the Children Act complaints procedure.

In response to the ''Listening to People'' consultation exercise, the clause amends the complaints procedure that was established under sections 26 and 24D of the Children Act 1989, which applies only to services provided under part III of that Act—local authority services to families and children. Complaints about other services provided under the Children Act, such as care or supervision orders and matters relating to child protection, are dealt with through the adult complaints procedure established under the LASS Act, which I described when I spoke about the amendment. We consider that that is an anomaly and that we need to extend the more child-focused Children Act procedure to all complaints and representations about the discharge of local authority functions under the Children Act, and therefore to many of our most vulnerable children. The clause, therefore, extends the Children Act complaints procedure to complaints and representations about the discharge of local authority functions under parts IV and V of the Children Act, which cover care and supervision and child protection respectively.

The effect will be that the Children Act procedure will be extended to cover matters such as the way in which a local authority has approached decisions to apply for care or supervision orders, the functioning of a child protection conference, the discharge of the local authority's duty to make investigations under section 47 of the Children Act and the local authority's role in applications for child assessment in emergency protection orders under sections 43 and 44 of that Act. The main advantage of the change will be to ensure a robust approach to all complaints made by or concerning children, not just those concerning services provided under part III.

The extended Children Act procedure will be a better means of dealing with complaints involving children than the LASS Act procedure because it involves an independent person to oversee the process

and has tighter time scales, allowing children's complaints to be dealt with more quickly. The clause also amends the Children Act in order to enable regulations to be made imposing time limits— there are currently none—for the making of representations under that Act, which was one of the points raised by my hon. Friend. It is intended to introduce a 12-month time limit for eligibility to make a complaint. The Government's aim is to set a reasonable time limit, so that the matters complained about have a reasonable prospect of remedy.

I accept my hon. Friend's point about the particular nature of children's complaints, but it is important to recognise that if we are to make the Children Act procedure as effective as possible, we need to ensure that it is able to focus on those complaints for which a remedy is achievable. That is a strong argument for introducing a time limit. Although we would expect the 12-month limit to be the norm, local authorities will be given discretion to look into older issues. That would not normally extend to investigating complaints about matters that occurred many years ago, but could cover cases in which, as my hon. Friend suggested, because of the nature or circumstances of the complaint, a child has taken longer than 12 months to come forward, and it is still possible to remedy the problem.

The clause also makes a mainly technical amendment to the Children Act regulations to enable the introduction of an effective, informal resolution stage into the Children Act complaints procedure. An informal resolution stage, similar to the local resolutions stage in the NHS complaints procedure, is already required by the adult complaints procedure established under the LASS Act.

In practice, local authorities often operate an initial problem-solving stage, resulting in lengthy investigations before the complaint is dealt with formally. We are able to introduce an informal resolution stage to the powers in the Children Act by means of regulations, and we propose that it should have a tight, 14-day time scale because it is especially important for children to have their concerns dealt with quickly. Without that amendment to the Act, the informal stage would have to involve an independent person—that is currently required for the whole procedure—which is one advantage of the Children Act procedure, but means that a short-focus informal resolution of the sort that we want is not always possible.

Photo of Robert Walter Robert Walter Conservative, North Dorset 6:15, 15 January 2002

I seek the Minister's clarification. Does she envisage those procedures relating solely to England? The Children's Commissioner for Wales might be an independent party to whom the child or another party might complain, and he might have instituted an investigation relating to the child's complaint. The sort of complaint procedures that the Minister has mentioned might not be relevant in Wales, although the Bill applies equally to England and Wales.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

The hon. Gentleman is right: this procedure and the changes that we are making to the Children Act complaints procedure relate to England and Wales. He raises an interesting point about the role of the Children's Commissioner, but it does not undermine what I have said about the improvements to the Children Act procedures, because they already run alongside the work of the Children's Commissioner for Wales. I shall bear in mind what the hon. Gentleman said.

I wanted to respond to the plea made by my hon. Friend the Member for Lancaster and Wyre about the child having a voice in the complaints process. He will, I am sure, be aware that one of the important objectives of the quality protects programme, which is supported by £885 million, is the development of advocacy services. Progress has been made, but the provision and quality of advocacy is still too patchy, and it is something that many councils still have to develop. Much more needs to be done to ensure that the voices of vulnerable children are heard.

In this year's quality protects management action plans, we continue to ask councils to develop their independent advocacy services and improve their complaints procedures. As those advocacy services are developed, it is important that good quality services are made available to children, which is why we are keen to promote the use of national advocacy standards. Standards have been drafted to develop better and more consistent standards, and we intend to consult on them in the near future. I would also point out that the role of the children's rights director, introduced under the Care Standards Act 2000, is to respond to those children who most need a champion. We plan shortly to put the draft regulations covering the work, key tasks and responsibilities of the director out for public consultation.

My hon. Friend also pushed me on the question of advocacy for looked-after children. I have significant sympathy with him on that, because children and young people who are being looked after can be especially vulnerable when they want to raise problems or concerns. The Government want to safeguard such children, and we want to strengthen further advocacy services for looked-after children when they make a complaint under section 26 of the Children Act.

We will be consulting further on these issues, and will then develop a clear action plan informed by the responses received in order to drive through the necessary changes. Those changes will, I believe, go a considerable way to achieving my hon. Friend's demands. The consultation will include exploring the possibility of introducing a joint system between children's social services and developments in the national health service. With the creation of the independent complaints advocacy service for people who want to complain about the treatment or service that they receive, we have taken considerable steps in providing advocacy for people who want to complain. Therefore, it is appropriate that we make much further progress on children's ability to access advocacy.

I hope that that response reassures my hon. Friend and that members of the Committee will feel able to support clause 111.

Question put and agreed to.

Clause 111, as amended, ordered to stand part of the Bill.