I remind the Committee that with this we are taking the following amendments: No. 12, in clause 11, page 10, line 18, at end insert—
‘(5) A local authority must ensure that the independent reviewing officer appointed under this section is sufficiently independent.
(6) In this section ‘sufficiently independent’ means—
(a) having minimal connection to the local authority in question;
(b) having not worked for the local authority in question in the last 10 years;
(c) being previously unconnected to the particular child in question; and
(d) having no conflict of interest.’.
No. 33, in clause 11, page 10, line 18, at end insert—
‘(5) In carrying out his functions in relation to subsection (1)(c) above the independent reviewing officer must—
(a) give information to the child about independent advocacy;
(b) where the need for independent advocacy is identified, require the local authority to make arrangements for the provision of independent advocacy for the child.
(6) For the purposes of this section—
(a) “advocacy” means the provision of independent and confidential information, advice, representation and support to a child;
(b) “independent” means that the person appointed is not connected with the local authority by virtue of being—
(i) a member of the local authority or any of their committees or sub-committees, whether elected or co-opted; or
(ii) an officer of the local authority employed by the Children’s Services Department of that authority; or
(iii) a spouse or civil partner of any such person.’.
No. 36, in clause 11, page 10, line 18, at end insert—
‘(5) In carrying out his functions in relation to subsection (1)(c) above the independent reviewing officer must—
(a) give information to the child about independent advocacy; and
(b) where the need for independent advocacy is identified, require the local authority to make arrangements for the provision of independent advocacy for the child.
(6) For the purposes of this section—
(a) “advocacy” means the provisions of independent and confidential information, advice, representations and support to a child;
(b) “independent” means that the local authority has arrangements in place to ensure that the child is protected from any conflict of interest on the part of the advocate appointed.’.
It is a pleasure to see you back in charge of our proceedings, Mr. Pope. Hon. Members will recall that I introduced the amendments on Thursday, albeit briefly. I shall now move on to the specifics.
Amendment No. 35 is a probing amendment to tease out the Government’s thinking on what an independent reviewing officer’s independence means and how they believe that the reviewing officer will be able to do their job independent of the local authority that they are helping. Independent reviewing officers are registered social workers; the local authority for which they carry out their work may employ them or they may be self-employed. In the context of the amendment, that work is participating in the statutory reviews of looked-after children cases, monitoring progress made in accordance with the child’s care plan and reporting their concerns to the Children and Family Court Advisory and Support Service.
Clause 11 alters those duties by adding more responsibilities. First, each child will know who their independent reviewing officer is. Secondly, the independent reviewing officer will be charged with assessing the child’s views and wishes and with ensuring that they are taken into account at the statutory reviews.
The amendment relates to the proposed new subsection 25B(4) to the Children Act 1989, which begins:
“If the independent reviewing officer is not an officer of the local authority, it is the duty of the authority”.
It goes on to say what those responsibilities are, which include co-operating with the independent reviewing officer. With those words, the Government draw a distinction between a self-employed independent reviewing officer who is engaged to do the work and one whom the local authority employs. Why does that authority not have a duty to co-operate with an independent reviewing officer who is an officer of the local authority? Surely, our job as Parliament is to ensure that, whoever the independent reviewing officer is, they do their job independently, since it has “independent” in the title. An independent reviewing officer employed by a council could be put in a compromising position if we do not say that the local authority is under a duty to co-operate with them as much as it is required to co-operate with outside officers.
The Family Rights Group has trained 250 independent reviewing officers. It has found that the pressures on independent reviewing officers from the local authorities are equally intense, whether they are an officer of the council or self-employed. If they are independent they worry about whether they will get more contracts if they give the local authority a hard time, and if they are an employee they worry about whether it will affect their career progression and future job with the local authority if they give their employer a hard time.
The amendment’s purpose is to ensure that it is the authority’s duty to co-operate with the independent reviewing officer, whether or not they are an officer of the local authority. I shall be interested to hear the Government’s response. I am reminded by my tenuous knowledge of employment law, which goes back to when I practised as a lawyer more then 11 years ago, that it is an employee’s duty to obey “reasonable and lawful instructions” from their employer. A local authority could say to its employee who is going to take part in a statutory review, “You will have regard to the parlous state of our finances when you take part in the review, won’t you?” If they are under that kind of pressure from their local authority and a child is saying to that independent reviewing officer that they want an outcome that is expensive for the local authority, how is an independent reviewing officer to advocate for the child in the statutory review? If the law of the land says it is the duty of the authority to co-operate with its employee in that situation, at least the independent reviewing officer would be able to turn round to the council and say, “Excuse me, but in this situation you have the duty to co-operate with me. I shall therefore do my job independently, as the law requires.” That is the outcome that all in this room would hope to happen on every occasion. That was my purpose in tabling the amendment.
The group of amendments includes No. 12, which is about the independence of independent reviewing officers, and amendment No. 33, which is about independent advocacy for children who are in contact with the independent reviewing officer. I did not table those amendments and will leave it to those who did to explain them.
I did table amendment No. 36 so I will speak briefly to it. It is very similar to amendment No. 33. I must declare a slight interest because some years ago I was a founder member of a citizen advocacy scheme in Staffordshire called ASIST, which is an acronym for Advocacy Services in Staffordshire. It successfully set up a scheme of advocates for adults covering the entire county and many different situations. It has a good combination of employees who are paid to do the work and volunteers who are trained to do it. They work as a team to provide advocacy across the county.
The first time I saw the advocates in action, having helped found the organisation, was when a large mental institution was closed down and people were moved to independent living in the community. Advocates from ASIST were contracted to carry out advocacy on behalf of the residents. I know that this is a bit of a diversion, Mr. Pope, but shockingly, I met a woman in her 80s in the mental institution who had been admitted because she had had a child out of wedlock when she was a young woman. That is amazing in this day and age.
The advocates provided superb skills to people who had been institutionalised for their entire lives. The advocates got to know them, understood their circumstances, learned what their points of view were and articulated their views and wishes to the reviews, which determined where they would live and what support they needed to live independently. I have seen advocacy at first hand through that tremendously successful scheme. To explain my interest further, I am still a patron of ASIST because it did not want to lose contact with me when I was elected to Parliament.
Amendment No. 36 proposes that when an independent reviewing officer seeks the wishes and views of a child, they should tell the child about the availability of independent advocacy services. If the child wanted somebody to speak for them in a statutory review, they could ask somebody to be their advocate and bat for them in front of the professionals in the review.
Some might argue, as did Lord Adonis in the other place, that if the independent review officer’s role is being strengthened and they will be charged with learning what the child thinks and wants, there is no need for an advocate because the independent review officer can do the necessary work on behalf of the child. I disagree with that because if the independent review officer is to stay true to that title, they will take account of the views of the child, the local authority, other professionals and the parents in deciding what is best for the welfare of the child. That might or might not be what the child wants. The point about an advocate is that they are never diverted from speaking up for what the child says the child wants. Ensuring that that voice is heard in the place where it matters the most is an important role.
How does the hon. Gentleman’s scheme of independent advocacy for children through the independent review officer sit with the draft legislation, which is in line with the Adoption and Children Act 2002, and allows for an officer of CAFCASS to be referred by the independent review officer to take on the role as an advocate should the case arise?
I am grateful to the hon. Gentleman. He has offered a way forward on who could be an advocate for a child. A CAFCASS officer is a perfectly acceptable person—independent of everyone in the process—to step in and be that advocate if that is what the child wants. However, we should give the child a diversity of choice. My amendment differs from amendment No. 33, which was fully debated in the other place. That amendment seeks to ensure that the advocate chosen by the child is absolutely independent of the local authority. My amendment does not go that far. If, for example, there is a member of staff in a residential children’s home who has been trained to be an advocate and has gained the appropriate qualification, and a child wants that person to be their advocate, we should not say, “You cannot have that person because they are employed by the local authority so they are not independent.” If the child is confident that that person could speak for them, even against their employers, that is fine by me.
The hon. Gentleman mentions the 2006 Act. I would go back a little further to the Children (Leaving Care) Act 2000, because that is when the big debate about advocacy first emerged in Parliament. We were given assurances during the passage of that Act—which came to fruition two years later, I think—that a child in care would have access to an advocate if they wanted to make a complaint or a representation about their care. Fortunately, the number of complaints is quite low, but not many youngsters appreciate that they could have an advocate to make their complaint for them, and they certainly do not know what a representation is. Roger Morgan, the children’s rights director, often has difficulty—even though it is his job—explaining to people that representation could be read widely, and that there could already be many situations where a child could access an advocate if they wanted to. Even wanting to have their voice heard at a statutory review could be classified as a representation. I argue that perhaps the Government have done a good thing in the past, but they have, through the kind of language used and the lack of publicity about representation, denied a lot of access to advocacy to children who already probably could have had recourse to it. Later, one or two new clauses that try to reassert the general access to an advocate that a child should have will be proposed.
I want to draw my comments to a close by referring to the recent report by Roger Morgan, the children’s rights director, on children’s views of advocacy. He gives helpful guidance based on his interviews with children. Children and young people regard the independence of the advocate as important, mainly because the advocate would not be involved with the issue at stake, they would be less judgmental than people closely involved, and the process of consulting with the advocate would be more private. On page 13 of the report it states:
“Many children and young people expressed very strong views about this. Some thought it was important that advocates did not work for the same organisation as the people looking after them. Others thought that advocates should not be people in the same home as themselves.”
That shows a healthy pragmatism on behalf of the children and young people: the advocate would be somebody they trusted and their status—whether or not they were an employee of the local authority—would not necessarily be important.
Roger Morgan asked children when they thought an advocate would be of use. These are some of their answers:
“When you feel like complaining”.
They could already access advocacy in that situation.
“When you’re in a meeting and you don’t understand it”.
It is frightening that the professional process can go on around somebody and they do not know what is happening. A good one is:
“When you’re locked up”.
That is an obvious reason for wanting somebody to say something on your behalf.
“When you have been arrested or in trouble at school or in any other bad situation”.
“When I’m too afraid to ask the council”.
The latter is an enlightening comment, which links to giving people the ability and the confidence to know that with someone’s help they would be able to say the right thing at the right time. The final situation quoted in the report was:
“Whenever you feel unable to speak for yourself”.
As a result, Roger Morgan made some recommendations, and I would like to refer to four of them.
I refer the hon. Gentleman to the documents and will happily lend him my copy in a moment.
Roger Morgan describes his methodology, which involves a number of interviews across the country and a number of open opportunities for people to make comments, such as through a website or by writing in. It covers the whole of England and so is drawn from across the country. However, he does not individualise the responses, so it is not possible to see where in the country each person made their comments.
Lastly, I want to refer to four of the seven recommendations that Roger Morgan made as a result of the views that he received from children. First, all children who have a right to help from an advocate need to be told about advocacy and how to contact an advocate. That comes back to the point I made earlier about some children not appreciating that they can have an advocate to make a complaint. They certainly do not understand what a representation means and that they can have an advocate for that reason.
Secondly, most advocates should be independent of the organisation looking after the child, although children should be able to choose an advocate they know from their own service if they wish to do so. That is why amendment No. 36 is different from amendment No. 33. Thirdly, children should have a choice of advocate and should be able to change their advocate if they do not get on with them. That is a matter of practice, but it requires a diversity of providers of advocacy services to be available. Fourthly, children should be able to have the help of an advocate if they need one to help get their views across and not only in relation to complaints.
That is another example of Roger Morgan using his experience to say that although the law perhaps intended a wider access to advocacy, it is mostly coming through in connection with the making of complaints. Therefore, I hope that the amendments can provoke a debate that leads us to see that some changes to advocacy services will definitely be needed in the future. Those could be achieved through changing the law or through the guidance and practice that comes next.
It is a pleasure to serve under your chairmanship again, Mr. Pope. Amendment No. 35 seems eminently sensible to me. I will wait to hear the Minister’s reassurance that it is not necessary, but I think that it addresses some important points. Indeed, I will perhaps inadvertently touch on some of the points addressed by amendment No. 12, because it seems that the way the position of independent reviewing officer is being set up will make swaps between local authorities more likely, which will be useful.
I live within a unitary authority that is adjacent to another unitary authority so I know from experience that, with regard to careers, there is a great deal of movement between the two unitary authorities. Because of their proximity, it is highly likely that someone in one authority will have worked for the other. People tend to stay in our area once they have moved down. It is important to ensure that we are covering all independent review officers.
The hon. Member for Stafford made the point about self-employed independent reviewing officers who might find it difficult to make challenges for fear that contracts might not be awarded in the future. My concern is about inhibitions or obstacles on the part of the local authority, which mean that the case cannot be strongly put for the child receiving the sort of services that they should receive. The amendment seeks to ensure that local authorities co-operate with independent reviewing officers, whatever their status. To my mind, that would ensure that we have effective challenges on behalf of all looked-after children, regardless of the independent reviewing officer’s employment status.
I made a note that on amendment No. 12 I would listen carefully to the arguments before pronouncing. I shall stick to that so the hon. Member for East Worthing and Shoreham can be assured that I will be listening.
Amendment No. 33 was tabled in my name and that of my hon. Friend the Member for Ceredigion. I have also supported amendment No. 36. As has already been said, there is a great similarity between the two amendments. There is a difference in that amendment No. 33 contains a more comprehensive interpretation of the term independent. There is probably a balance here: there should be confidence in the independence, but equally it is important that whoever the person is, they have the total trust of the child. The important point and the thrust of the two amendments is the aspect of the independence and the need for advocacy.
I have been impressed by just how many organisations and professionals from the whole spectrum believe there is a need for independent advocacy. Indeed, 30 different organisations have signed the joint statement on it. I have spoken to professionals right across the field and they all suggest that there is a need for more advocacy. Perhaps most important of all, the children themselves want independent advocacy.
My hon. Friend has mentioned the extensive number of organisations that support our amendment. Would she agree that it is also a question of practice across the United Kingdom and elsewhere? Wales is very much leading the way in terms of the development of independent advocacy. The Assembly’s Children and Young People’s Committee has recommended having an advocacy unit within the Assembly, as well as a national body to provide advocacy services for children.
I thank my hon. Friend. I hope that the Minister will be able to touch on that point about equality of service across the UK. Going back to the many supporters of independent advocacy, it would be remiss of me not to refer to the famous reference in 1997. Sir William Utting’s report “People like Us” concluded that looked-after children needed independent advocacy as a source of protection and a means of making their voice heard. There is certainly evidence to suggest that professional advocacy input leads to better decision making and that children’s outcomes are improved as a result.
Independent advocacy is made available now through local decision making and there is also the right to independent advocacy if we get to the complaints stage. But I believe that children and young people should have access to advocacy before something has gone wrong. The independent review officer should inform the child about independent advocacy, what it means, how it can help and how it differs from the roles of a social worker and an independent review officer before each review. Following that discussion, and where the child is clear that he wants an advocate or the independent review officer feels that the child would benefit from one, the local authority should be required to provide advocacy services to that child. Obviously not all children will need or want advocacy. It is a matter of its being available.
At a recent meeting of the Children, Schools and Families Committee, I asked the Minister about children with physical difficulties. If a child has such severe physical difficulties that they are placed quite a long way way from home in specialist residential accommodation, surely there is a need for advocacy. It has been drawn to my attention that that might be a situation where the relationship with the child is an important determinant of the choice of advocate at that point. Being able to interpret the wishes and feelings of children who perhaps cannot communicate fully themselves is such a delicate thing.
I also mentioned mental disabilities. Sadly, many children who are brought into care are likely to have been abused in some way or other. They may have the greatest difficulty expressing their views for that reason. I was heartened by the Minister’s response, which I interpreted to be that in such cases as I described, it would be difficult to think that advocacy would not be needed. I am looking for at least an acknowledgment that independent advocacy is necessary in a number of cases. Perhaps we will need a roll-out process, but surely we should start somewhere by making sure that there is an absolute right to it.
The independent review officer role has been strengthened and I welcome that, but I do not believe that the enhanced role meets the needs of more children to have access to professional independent advocacy. The expression of the child’s views in the decision-making process by an independent review officer who is responsible for facilitating its outcomes is quite distinct from the representation of those views by an advocate who is independent of the process. Review officers cannot practically be expected to enable the necessary participation of the child in the review process, despite the existing requirement in regulations to ensure that the voice of the child is conveyed to the review.
Children still tell the various children’s organisations that they do not feel they are listened to. The hon. Member for Stafford has just given us some examples. One child said of his experience, “I told the IRO that I wanted contact with my sister, but that did not come up at the meeting.” That sounds remarkably odd. Independent review officers have significant responsibilities in relation to chairing review meetings, which means that they do not have the capacity to give young people the dedicated support necessary to ensure that their views can be clearly represented. Chairing a meeting and putting views forward are clearly quite different roles. Moreover, the IRO has to act in the best interests of the child. It is possible that they concluded that what the child wanted was contrary to the child’s best interests. In that situation, would an IRO be able to represent the views of the child as well?
Better decision making can save money in the end. I urge the Ministers to think again and to give further consideration to a statutory right to independent advocacy whenever significant decisions are being made in the lives of looked-after children, and not just when they have cause to complain. That would be integral to the whole Government policy of improving outcomes for children in the care system.
May I welcome you back to the Chair, Mr. Pope? I want to speak primarily to amendment No. 12. I agree with much of what has been said by the hon. Members for Stafford and for Mid-Dorset and North Poole and I will touch on the subject of advocacy at the end of my comments. I agree that there is a case for a greater use of advocacy before things reach the crisis stage and something has gone wrong. I certainly agree with the method behind the hon. Gentleman’s amendment in trying to tease out the independence of the IRO and argue for greater independence. I am approaching the matter from that same angle.
I went back over the Committee proceedings of the Adoption and Children Act 2002, back in those heady days of 2001-02 when I was in the same role as today, leading for the Opposition. The current Home Secretary was leading for the Government. Great things happen to some people and not to others. That was the piece of legislation that set up the IROs. They came in on an statutory basis in 2004. In another place, Lord Adonis made it clear that the primary role of the IRO was to ensure that the child’s wishes and feelings are listened to. He said:
“The role of the IRO is central to ensuring that the voice of the child is heard. Therefore, Clause 11 introduces a specific duty on the IRO to ensure that the wishes and feelings of the child are given due consideration in care planning.”
He went on:
“The IRO will support children’s active engagement with the care planning process, ensuring that there is greater scrutiny of the care plan for each child in care and making sure that children and young people are informed about their rights if they consider that they have been treated unfairly.”—[Official Report, House of Lords,17 January 2008; Vol. 697, c. GC581.]
None of us would disagree with that.
I challenged the then Health Minister, who is now the Home Secretary, about the independence of the IRO when debating the Adoption and Children Act 2002. That was an important consideration for many of us when the legislation first came in. She said:
“It is vital that reviewing officers are independent of the case management and perhaps the social services department in the authority.”—[Official Report, 20 May 2002; Vol. 386, c. 61.]
I was making the case for an IRO being completely disconnected in terms of previous employment and engagement from the responsible social services department, which would now be the children’s services department. That is what lies behind amendment No. 12.
Since the independent reviewing officers became statutory in September 2004, their functions have been set out. They are there to monitor the local authority’s plans for a looked-after child and, where appropriate, to refer the case to CAFCASS. Will the Minister say how many referrals there have been to CAFCASS, whether that has put a lot of pressure on it and whether it has been able to deal with it? Has that even been a consideration?
The amendment is designed to get around a potential conflict of interests. I made this point during the passage of the 2002 Act and other hon. Members expressed similar concerns. There are obviously difficulties for officers who are employed by the authority and who, in effect, have to challenge their employers, to whom they are contractually accountable; whereas officers who are self-employed risk not being given any further work if they are too challenging and are perceived to be a thorn in the local authority’s side. There is clear potential for a conflict of interests and for an IRO “dumbing down” any criticism of a local authority because it might think that that officer is a bit of a pain and will think again about whether to keep on or give him future case work.
Does my hon. Friend agree that in the strengthening and widening of the IRO’s role, the perception of the independence of that role on the part of parents and children is important? In the current system, particularly as part of the care planning process in the court arena, we see parents challenging the work of social workers. The court then has to employ an independent social worker from outside the local authority to carry out a further piece of work, thereby adding to the cost of the process. Is there not a danger that with the strengthening and widening of the role of the IRO, the perception of independence will decrease rather than increase?
My hon. Friend is absolutely right and has clearly seen that happen in his former job. It is crucial that the independence of the reviewing officer is seen in practice, particularly by the family so that they have confidence in the whole system. The burden of proof is on the Government and the authorities operating the system to show that the IRO is absolutely independent and makes decisions based entirely on the welfare and interests of the child and his family, rather than on any subsidiary interests of the employing authority, for which it might be rather inconvenient if a decision went the wrong way. It is therefore crucial that we get it right.
When the IRO was first established, I welcomed it, and we welcome the widening of that role, but it will not have the necessary effect unless the IRO’s independence and integrity are kept sacrosanct.
Is it not difficult to pursue independence to the state of perfection? The hon. Gentleman’s amendment seeks to make authorities pay for outsiders in every case. Clause 12 is about perhaps setting up a completely independent body, just to do the job. Does it not get more and more expensive but never achieve what he might call the perfection of independence? Is not the better solution the sort of independent reviewing officer that we have now as well as decent advocacy services for children? That would save us all this expense and worry.
I am grateful that the hon. Gentleman described my amendments as near perfection—he has certainly not done that before. I may return to the exact terminology of the amendments and explain why they are practical rather than idealistic.
In its brief, the General Social Care Council raises points about the qualifications and training of the IRO, and reasserts that it is essential that GSCC registration is a requirement. The council wishes to be involved in the development of the regulations, and it believes that IROs should have appropriate training and accreditation. It would be useful if the Minister commented on that. Clearly, part of the confidence in the role of the IRO is linked to their qualifications and ability to do the job.
The hon. Member for Mid-Dorset and North Poole touched on, albeit more in relation to the advocate, the particular needs of children with disabilities in communicating their wishes. During the debate in the Lords, Lord Adonis said that he will
“ensure through statutory guidance that children with communication difficulties or complex needs are supported either by an IRO with the skills necessary to facilitate care planning and to elicit the views of children with communication difficulties or complex needs, or through an IRO who has access to specialist input from someone who has these skills to ensure that the child’s views are elicited and put forward effectively.”—[Official Report, House of Lords, 16 January 2008; Vol. 697, c. GC530.]
That is reassuring, but I am concerned though whether that will happen in practice and whether there are people capable of performing that role.
We know how short of skilled social workers we are. We will be even more short of skilled social workers if more of them are hived off to be IROs and to do other specialist jobs for which a social work qualification is needed. We desperately need more social workers—that is the solution. I would appreciate a comment from the Minister on how the capacity of the system can cope with the particular communication skills required, as described by her noble friend Lord Adonis. If that capacity is not satisfactory at the moment, how will it become so, and how soon will we be at that stage?
Will the hon. Gentleman also consider that a severely disabled child, many miles from the local authority that is providing the services, may have formed a relationship with a visitor to the residential home? It may be easier for somebody who has a close relationship with that child to interpret what they want, rather than a distant independent reviewing officer, however skilled they might be.
The hon. Lady makes a good point. The issue of children with disabilities is also relevant to the role of an advocate, as she touched on. One of the consortium papers states:
“Disabled children placed away from home urgently need a right to advocacy.”
The same applies to specialist access to IROs. The paper goes on:
“Disabled children are at least three times more likely to be abused or subjected to demeaning treatment than other children and those living away from home are especially vulnerable. Many children in this situation have little or no contact with their families and are very isolated. Advocates can help these children stay safe.”
Similarly, the whole role of the position is also relevant.
The amendment cites four criteria. It is a probing amendment, and no doubt the Minister will shoot it to pieces when referring to the practicalities of putting it in the Bill, but we think that certain benchmarks are needed to assure the independence of the IRO. IROs should have a minimal connection to the local authority in question. Clearly, it is not sufficient for someone who has long been an officer of an authority to give a judgment on former close colleagues, as their judgment might be coloured by that, rather than the underlying needs and welfare of the child. That is why the amendment proposes that the IROs should not have worked for that authority.
When we debated that during the passage of the Adoption and Children Act 2002, six and a half years ago, we looked at the possibility of the officers coming from neighbouring authorities, but as we know, many social workers who work for local authorities, as with many other officers in children’s services departments, can move around quite a lot, particularly among London boroughs and between the home counties. We therefore propose that the officer should not have worked for the local authority in question in the previous 10 years, as that would ensure a good degree of independence.
I am listening with some care to what my hon. Friend is saying. I have a problem, which is that I live on the Isle of Wight. I am sure that he is familiar with that in relation to other issues. If the officer has not worked in 10 years, the problem is that they are likely to have left employment for that time if they lived locally, or they have retired. There is also the question of how up to date their knowledge is. Could my hon. Friend give some indication of how many people we are talking about—one in 10 years, or 20 in 10 years? I know that it is difficult, but that would help make my thoughts clearer.
My hon. Friend makes a helpful and probing intervention. The more the Committee’s proceedings continue, the clearer it has become that the Isle of Wight is a separate universe with a microclimate of its own, and that poses all sorts of problems. The narrow stretch of water between Hampshire and the Isle of Wight has much to answer for.
We are not looking at retired social workers, but social workers move around the system a great deal. With the addition of these new practices for social workers, that flow is likely to be greater. We do not want people who are out of date and lack the necessary training, which is why I quoted from the GSCC earlier and commented that IROs would absolutely need to be capable of doing the job, to be registered and to meet all the standards expected of them. In no way are we trying to have a sort of “Dad’s Army” of IROs—I hasten to add, lest I start to get complaints about that analogy, that the Home Guard did a fine job. There is no question of the individuals in question not being trained. My primary concern is that the IRO is not too close to the people who are effectively paying them or giving them the business, and that their absolute primary concern is the welfare of the child.
The amendment’s third requirement is that the IRO should be previously unconnected with the child in question. They should have an entirely dispassionate view of the child’s circumstances and the experiences leading up to the event on which they are required to make the report. They should not be coloured at all by the fact that they might have heard of that child when working as a social worker some years before, if it was a child who had been in the care system for many years. As a sort of catch-all addition to the amendment, we have said that there should be no conflict of interests. I am sure that the Minister will point to the difficulty in defining that, but this is a probing amendment. The key point is that there should be no conflict of interests that would hinder the IRO’s capacity to make an independent report.
I should like to touch briefly on the comments about advocacy. I have in the past supported greater advocacy as applied to certain groups of vulnerable people. I am sympathetic to what the hon. Members for Mid-Dorset and North Poole and for Stafford have said. We may have more of a debate on that when we come to new clause 31, which deals with the subject of advocates. Certainly, the report from the children’s rights director cited by the hon. Gentleman is excellent, as so many of them are. I agree with his comments. I certainly endorse the responses of children who said that it is essential that they can associate and identify with the IROs, and they need to be able talk with them privately and to be assured of their independence.
A costing has been placed on the availability of advocacy for children’s services. An estimate by the National Children’s Advocacy Consortium showed that on the basis of a 15 per cent. take-up, introducing such a service would cost what it described as a relatively modest £3 million, excluding on-costs. Is that an entirely unrealistic figure? Have the Government done their own costing? Whatever the Minister may say, there is a cost element to the reason why advocacy has not been included in the Bill. The Government set an interesting precedent in the Mental Health Act 2007, and I challenge them to say why it was done for that group of people but they do not propose to include it in this Bill.
The hon. Member for Stafford, who also sat on the Committee on that Bill, will remember that well. Advocacy services for people with mental health problems were included in the draft Bill that was first produced in 2004 and they had mysteriously disappeared from the Bill that was introduced after the Queen’s Speech of 2006. After the pre-legislative scrutiny Committee report, the Government put advocacy back in the Bill and are greatly to be congratulated for doing so.
Advocacy was deemed to be essential for people with mental health problems for three main reasons. The first was to ensure a statutory right to an independent mental health advocate for all patients subject to compulsory powers, for which we can substitute “for all children subject to care orders”, in a perfectly legitimate parallel. The second reason was to make patients aware of that right; making children aware would be perfectly legitimate. The third was to ensure that patients have a right to meet their advocate in private. Again, we could substitute “children” and we have already touched on the importance of meeting in private.
The structure and the rationale behind introducing an advocacy entitlement for mental health patients subject to compulsion sits quite easily with a similar entitlement for children subject to care orders. The pre-legislative scrutiny Committee estimated that the whole-time equivalent of 140 advocates, which was the number deemed to be required, would cost approximately £5 million. There was debate about whether those advocates were physically available or not, so there is question of capacity. Although it is early days for that legislation, has that turned out to have been a realistic estimate and how would a similar measure pan out for children?
The Government still do not see that it is appropriate to introduce similar provisions, for perhaps a lower cost, for children subject to the care system. Given that the criteria for mental health patients could easily be transposed to children in the care system, why does the Minister think that the Government were right to make that provision for mental health patients? They were subjected to close scrutiny and a lot of lobbying, and I did not think that they would but, to give them their due, they did. I am keen to push amendment No. 12 as a probing amendment. I have some constructive questions in support of the principle of advocacy and I will be grateful for the Minister’s response on why the same principles could not be applied here.
I would like to look at clause 11, to which the hon. Member for Stafford has tabled amendments. I am concerned: that is not to say that I am opposed to the provision but I would like to consider it further. Do the advocates have to give continued and repeated help, or is someone else to do that? My concern is that the advocates will deal with one person one day, another person another day and a third person on a third day. It would be much better if a youngster had continuous help. The problem with these youngsters is that they are likely to be moved from one person to another. Can the Minister ensure that these youngsters have continuous help?
We have had an interesting debate and there is very little difference between the views of Ministers and of hon. Members on both sides of the Committee about what the amendments are trying to achieve and the assurances that they are designed to elicit from me.
Before turning to the specifics of the amendments, I shall reiterate what we were trying to do when we developed the White Paper around four key underpinning principles, one of which was the centrality of the voice of the child. That is why “Care Matters” set out a vision for a care system that systematically and consistently promotes the voice of children and ensures that their voice is heard. Taken together—it is important to see them together—the whole thrust of the proposals is systemic change, with the entire care system being child focused and decisions being made in the best interests of the child after having considered properly the child’s views and needs, just as any parent would. That is the intention of the proposals.
The people who are best placed to ensure that children are actively engaged in decisions that affect them are those who already have a professional responsibility for the child’s day-to-day care, and who therefore have practical experience of involving the child in day-to-day decisions. We agree completely that advocacy can have an important role to play for looked-after children. As hon. Members have noted, under the current statutory framework, all looked-after children should already have access to advocacy services to help them to pursue complaints and make representations about the services that they receive. I accept that the latter has not happened as much as it could have or as much as it needs to, as my hon. Friend the Member for Stafford said. However we believe that our proposed changes, particularly in clause 11, will address that.
Statutory guidance makes it clear that we expect children to have access to advocates beyond the formal complaints procedure: for example, a child should be able to get the support of an advocate in making representations about changes that may be required to the service that they receive. I therefore say to the hon. Member for Mid-Dorset and North Poole that I do not think this is a matter of law, but a matter of changing practice through the new statutory guidance. I am not persuaded that providing more advocates for all looked-after children in other circumstances would necessarily achieve what we are all trying to achieve.
To the hon. Member for East Worthing and Shoreham I say that cost was not the primary consideration. Looking at the subject in the round, as we did when developing the policy, we see that there are already many professionals—sometimes a whole plethora—who are involved with and interact with looked-after children. Increasing advocacy for every single child and adding an additional person into that mix can result in more confusion between the adults’ roles and even greater complication of relationships.
We are doing two things. First, to improve children’s participation in decisions about their care, we want to equip all those people who are working closely with them on a day-to-day basis—particularly carers, social workers and designated teachers—with the right skills to ensure that they really are listening to and understanding and taking account of children’s wishes. In particular, in clause 11, we are strengthening the role of the independent reviewing officer.
We also want to improve the practice of social workers who have day-to-day responsibility for children’s cases by setting out in guidance clear expectations for visiting looked-after children wherever they are placed. We are revising the statutory guidance on care planning to make it clear that social workers, too, have a responsibility to communicate properly with children and to record information systematically in the care plans so that care plans are comprehensive and up to date. For the first time, we also provide for new statutory guidance on the role of the independent reviewing officers responsible for monitoring the case as a whole and overseeing regular reviews of the care plan.
I will go through the various elements of how we want to strengthen that role, and I ask Members to think about them as a whole. We will require local authorities to appoint a named IRO for each child to enhance the personal accountability and individual responsibilities of each IRO. We will require IROs to spend time individually with each child before any review, so that that IRO personally establishes the child’s wishes and feelings about the issues that will be covered at the care planning meeting. The example the hon. Lady gave about the child who wanted contact with her sister should simply not happen, and we are going to make that clear.
I am anxious to know whether the word “representation” is deliberate a restriction on the right to advocacy. In the example that the hon. Member for Mid-Dorset and North Poole gave, if, at a case review, a child wanted it to be made known that he or she wanted to have contact with a brother or sister, would that entitle the child to an advocate to make sure it was said in the meeting?
That is an interesting question. I take “representation” in the terms in which we describe it here, potentially including any aspect of the services the child is receiving. The first and preferred option is to ensure that it is the IRO who raises the issues that are germane to a child’s future. If that is not done, there may be room for advocacy or for some other means of ensuring that it is done.
Is it not too late the day after the case review if it has not been done, and should not my right hon. Friend give a commitment to the Committee that in the new guidance it will be made clear that “representation” should be read very widely and might include the example we have just discussed?
Yes, I am happy to give the assurance that we want “representation” to be read widely, and to put that on the record.
We also want to introduce a duty on the IRO to monitor the local authority’s performance of its functions in relation to the case. It is important to understand that this duty will extend the IRO’s existing monitoring role, which is confined to the authority’s functions in respect of the review. It gives the reviewing officer a much broader scrutiny and monitoring role of the local authority’s functions in the whole of that child’s case.
Will the Minister clarify what consideration is being given to a sibling group? The way the legislation is drafted, each child will have its own independent reviewing officer but there may be circumstances—we see it already in the current system—where two or more siblings have the same independent reviewing officer. Whether that is done for convenience or cost or is really necessary is still unclear. Will there be a commitment to ensure that each child’s case is looked at individually rather than a sibling group being looked at in the round and given the same independent reviewing officer, even if each sibling’s needs are different?
It is very important that those decisions are made in relation both to the needs of each child and the needs of children as a group. If each child has their own independent reviewing officer for reasons to do with their particular circumstances, it is clearly very important in those circumstances that all the independent reviewing officers talk together about the needs of the individual versus the needs of the children as a group, and communicate about decisions that are often very difficult. The bottom line is that if each individual child needs to have an independent reviewing officer, that should be done. We must ensure that each individual child’s needs are catered for.
We will also introduce a requirement for the IRO to ensure that the local authority gives due consideration to any views expressed by the child. We will strengthen the guidance on the role of IROs by defining a significant event when a review must take place before any proposed change affecting the child can occur. We will update the guidance so that a referral by the IRO to CAFCASS is no longer seen as the last resort, but considered as a real option to ensure proper scrutiny of local authority decisions in any cases where the individual IRO believes it is appropriate to escalate any well founded professional concerns.
We will amend guidance to specify optimum case loads for IROs because, at present, we know that one of the factors in the failure of the IROs to fulfil the promise that we felt they had in the original legislation is the variability between local authorities in the size of IRO case loads. As I mentioned, that is impeding effectiveness in some services.
We will address statutory guidance to the IROs themselves on the importance of maintaining their independent voice in care planning, and on how to perform their role more effectively. It will be the first time that statutory guidance of that sort, on how to perform their role, will have been issued.
Finally, we will set out in regulations a description of the IRO similar to that in the Review of Children's Cases (Amendment) (England) Regulations 2004 that specifies the qualifications and experience the IRO must have that requires him or her to be independent of the management of the case. That is a point raised by the hon. Member for East Worthing and Shoreham. To clarify, regulations already require that the IRO must be registered as a social worker with the General Social Care Council and must have sufficient experience to undertake the functions. We will set out that description more fully in regulations.
Further, we will also expect IROs either to have the skills or to be able to access the specialist input necessary to elicit the views of children with communication difficulties or complex needs, and to do that effectively. Again, to answer a question raised by the hon. Gentleman, in developing the guidance around this expectation, we will undertake research on the type of support and skills that are required. That will include where advocacy, particularly specialist advocacy, might provide useful additional support to children. Through that research, we will look at any capacity problems in relation to that specialist expertise.
Amendments Nos. 33 and 36 would require the independent reviewing officer to give information to the child about independent advocacy. I am happy to commit to address that point in the new statutory guidance that will be issued directly to IROs for the first time following this Bill. We will ensure that the guidance makes it clear that the IRO should seek the assistance of a professional independent advocate if they are unable to ascertain the child’s wishes and feelings. The members of the National Children’s Advocacy Consortium have already discussed this with us and they will be consulted closely during the development of the guidance.
Those amendments also seek to require the local authority to make arrangements for the provision of an advocate when the need for one is identified. That is not necessary, as it would simply duplicate existing law. The Advocacy Services and Representations Procedure (Children) (Amendment) Regulations 2004 already require that when a local authority becomes aware that a child or young person wishes to exercise their right to make a complaint or other representation about services they receive, the authority must provide them with information about advocacy services and offer help in obtaining an advocate. Our reforms both to practice and to the legislative framework will mean that we can deliver a system that puts the voice of the child at the centre. I hope that on that basis, and given our commitment to address those points in the new guidance issued directly to IROs, my hon. Friend the Member for Stafford will be satisfied and feel able to withdraw the amendment.
Turning to some of the specific questions raised by amendments Nos. 12 and 35, regarding IRO independence and the duty of a local authority to co-operate whether or not they are officers of the authority, I completely understand the concern about IROs independence. In developing the policy, I grappled with that over a long period. My inclination initially was to go for a completely independent national service. However, when we looked at it in detail, my view changed.
In consulting a very wide range of people, we found little consensus on why IROs have in some areas failed to have the impact on improving professional practice that we had hoped for. The evidence was insufficient to enable us to determine whether perceived shortcomings in case review processes were attributable, for example, to weakness in training and support or the variation in caseloads, or whether there was a more fundamental problem with the whole structure. It is also worth saying that the statutory framework for IROs only came into force in September 2004.
I was persuaded in the end, not least by the views of some key stakeholders, including the Family Justice Council, which told me:
“The drastic step of relocating responsibility for IROs outside local authorities, for example within CAFCASS or some other independent organisation, demands serious consideration. However, the level of disruption and expense and the unlikelihood of any, or any sufficient increase in CAFCASS resources...is a strong argument against. Moreover, the issue of independence from the local authority, perceived or actual, is not, in the view of the Council, the central issue.”
What I think that means is that, in all these cases, there is an important balance to be struck—as my hon. Friend the Member for Stafford said—between independence and feeling sufficiently strong and having the authority to be independent, and needing to co-operate with the local authority in the interests of the child. What we are asking IROs is to have not only the force of law behind them—what we are doing today—but their own sense of authority in striking that balance in the best possible way for each child.
We also commissioned a survey of IROs and, of the 70 responses, only three cited concerns about potential conflicts of interest in their role. Even in those cases, the concern was more about which part of the local authority they sat in—which department—rather a fundamental conflict of interest per se.
In implementing the measures, we will monitor progress very closely. If, as we hope, the desired changes in the effectiveness of IROs can be achieved through the new framework in clause 11, it may not be necessary to go further. If they cannot, we include the powers in clause 12 to establish a new national IRO service, entirely independent, if that is necessary.
We have no plans to change that—indeed, as I think the hon. Gentleman is saying, there is a case for making sure that those regional networks are as strong as they need to be. The force of the Bill and the guidance we issue to IROs will give a greater impetus to those networks, so that IROs can work together, talk together and work out how to maximise the potential of the changes in legislation that we are talking about today.
Turning specifically to amendment No. 35, the purpose behind new section 25B(1)(4) of the 1989 Act, inserted by clause 11, is to ensure that, in those local authorities where the independent reviewing officer is not a salaried member of staff, the IRO is not in any way put at a disadvantage in carrying out their functions. We expect those IROs to have the full co-operation of the local authority. We believe that the amendment is unnecessary, because it would make legislative provision requiring an authority to work reasonably with its own employees.
Hon. Members raised the concern that those IROs employed by a local authority might have their arms twisted because of other pressures on the local authority, extraneous to the case. We are clear that employees have a duty only to co-operate with lawful and reasonable instructions from their local authority, so I do not think there is a need to change the law.
I hope that hon. Members will recognise our commitment to finding the right way forward on these important and complex questions, and that what we have in the Bill is a very considerable strengthening of IROs’ independence. Nobody—IROs, local authorities, other agencies—can be in any doubt about the role we want the IROs to play. We are enshrining that in the Bill, and it will supported by statutory guidance, for the first time, on how IROs are to undertake their role in practice, day-to-day, in protecting both the voice of the child and their own independence.
I hope, with those assurances arising from the various probing questions Members have asked, the Committee will feel that we have a good regime in the Bill and that what we need to do is make sure it is put into practice.
I hope you will agree, Mr Pope, that we have had an important and interesting debate and in just 75 minutes, we have covered two very important subjects—the strength and role of the independent reviewing officer and access for children in care to independent advocacy. All hon. Members, and my right hon. Friend the Minister, have made concise contributions and have deployed a strong set of arguments for and against each position we have been discussing. I am grateful to the hon. Member for Mid-Dorset and North Poole for saying that amendment No. 35 is “eminently sensible” and to the hon. Member for East Worthing and Shoreham for saying he agreed with much of what I said in support of that amendment.
If we can move on to the Minister’s response to their points, as the hon. Member for Mid-Dorset and North Poole said, the thrust of amendments Nos. 33 and 36 is the need for independence of advocacy. I am grateful to my right hon. Friend the Minister for taking a lot of time to deal with the matter of advocacy. I think she is right to some extent that existing law would be fine if it operated properly. The hon. Member for East Worthing and Shoreham suggested using the precedent of advocates in mental health services for children in care. I would say that children in care provided the precedent for mental health service advocates, because the entitlement to advocacy for complaints and representations was introduced for children in care before it was ever used for mental health patients.
The role and purpose of advocacy has been developed and refined since the child’s right to an advocate was introduced. We therefore have quite a good model in mental health: there is an entitlement to the service, there is a right to be told about the entitlement, and there is a right to private access to the advocate. That should be the model in every area. I am sure the Minister is correct in saying that, through guidance, we can get to the same position for children in care. I hope that we will all be consulted later on the wording of the guidance to ensure that that is done.
On amendment No. 35, my right hon. Friend made the point that I thought she would make, that an employee of a local authority will have all the rights and access to resources to do their job without the need to specify in legislation that there is a duty on the employer to co-operate with their employee. I think we would all expect an employer to co-operate with an employee who has an important statutory role to fulfil. As she rightly assumed, I am concerned about arm twisting—perhaps not physical arm twisting, but the sort of subtle pressure that I described when introducing the amendment.
My right hon. Friend reminds us, as I said in my speech, that an employer is entitled to expect an employee to obey a lawful and reasonable instruction. She said it would not be reasonable and lawful for the local authority to tell the independent reviewing officer to have regard to something outside the case review, such as the financial situation of the council, when making their decision in their role as independent reviewing officer. I am a little more sanguine than she is in thinking that those pressures will not be there and will not tell in the outcome, provided that we are careful. Again, I ask her to ensure that that point is dealt with when guidance on the strengthened role is produced to protect employees.
Finally, I am glad that the Chairman agreed to group the amendments dealing with independent reviewing officers and advocacy, because I believe that the two issues go together very well. To expect the independent reviewing officer to be absolutely independent, to stand up for children and to deal with the plethora of professionals, as my right hon. Friend described them, but still come to the right solution in representing the child’s views and wishes is expecting too much, whoever provides the role. Even if we end up implementing clause 12 and creating a new body specifically to do the job, I still think that it is flawed because of the intellectual construct of that role.
With the benefit of many years of experience with the ASIST advocacy scheme in Staffordshire, whose work I have seen at first hand more than once, I believe that the advocate’s role is a special and dedicated one that should be separate from anybody who is going to make a decision about the welfare of the child. This is about ensuring that the views of the child are expressed properly at the right time and to the right people.
I assure the hon. Gentleman that I was saving dealing with his contribution to the debate until last, because that is a point that I agree with. I think that we can be relaxed about who becomes the IRO. We are strengthening the law relating to the role of that post, and we are doing fine. If we listen to the representations from the General Social Care Council and always ensure that IROs are registered social workers who have adequate training and accreditation, whether they work for the council, a separate body or are self-employed, we can rely on them to fulfil their role. My point is that that role is not to express the wishes of the child and ensure that someone persists in giving those views at the right time to the right people, which I think ought to be the role of the advocate. That meets the hon. Gentleman’s point. A plethora of professionals may come and go, such as social workers, consultant psychiatrists and head teachers. One of the complaints that young people make is that they can constantly be allocated a new social worker, so a new face appears. Equally, an IRO will have a case load in their day job and the case load for their IRO responsibilities might be for more than one child.
The advocate would be the person by the child’s side, in private and in the place where they live, talking about their wishes and desires and going with them to the meetings. They would speak on the child’s behalf against the sea of faces of professional people, who might have changed since the last time they all got together. The advocate would be the one person the child trusts and knows speaks for them. Having had their voice heard, the decision might not go the way the child had hoped, but they would at least have the satisfaction of knowing that they had had a fair hearing and that their point of view was stated. That is probably one of the greatest benefits of advocacy: what matters is not whether the case succeeds, but that it was made at the right time and to the right people.
That combination of the position of the IRO and the availability of an advocate, if the child wants one, to make those representations at the right time will be the best solution for improving the circumstances of children in care. Having listened to the Minister’s explanation of how she thinks the present law satisfactorily covers my concerns, I beg to ask leave to withdraw the amendment.
I shall speak briefly to the clause. I hope that hon. Members on both sides of the Committee appreciate that the measures in the clause, taken together, represent a significant strengthening of the role of the IRO. There is an important difference between the position of looked-after children and that of other categories of people, such as mental health users, for example, precisely because we have an IRO for each and every child. I intend to use the statutory guidance that we issue to those officers to ensure that they are able to fulfil the roles of representing the child’s wishes and independently scrutinising and monitoring the local authorities in the way we all want them to.