New Clause 6

Children and Young Persons Bill [Lords] – in a Public Bill Committee at 9:45 am on 3 July 2008.

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Looked after status

‘(1) The 1989 Act is amended as follows.

(2) After section 85(4) insert “; and

(c) in the exercise of their functions under paragraph (b) consider whether the child’s welfare is best safeguarded and promoted by being a looked-after child.”’.—[Tim Loughton.]

Brought up, and read the First time.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I beg to move, That the clause be read a Second time.

Photo of Greg Pope Greg Pope Labour, Hyndburn

With this it will be convenient to discuss the following:

New clause 10—Long-term placements—

‘In section 324 (c.56) (statement of special educational needs), of the Education Act 1996, at end insert—

“(7A) Where a statement specifies a school or type of school that would result in a child not ordinarily being resident with their parent, the authority shall consider whether the child’s welfare is best safeguarded and promoted by being a looked after child.

(7B) The duty imposed by subsection (8) shall be performed in accordance with regulations.”’.

New clause 33—Looked after status for children in health settings etc.—

‘(1) The 1989 Act is amended as follows.

(2) After section 85(4)(b) insert “; and

(c) in the exercise of their functions under sub-paragraph (b) the authority shall conduct a children in need assessment under section 17 for the purpose of determining whether the child’s welfare is best safeguarded and promoted by being a looked-after child.”’.

New clause 34—Looked after status for disabled children in education settings—

‘In the Education Act 1996, section 324, at end insert—

“(8) Where a statement specifies a school or type of school that would result in a child not ordinarily being resident with their parent, the authority shall carry out a children in need assessment under section 17 of the Children Act 1989, for the purposes of determining whether the child’s welfare is best safeguarded and promoted by being a looked after child.

(9) The assessment specified in subsection (8) above shall be carried out as soon as reasonably practicable and no more than 14 days after the date the statement is issued.”’.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

New clauses 6 and 10 deal with children with disabilities in long-term placements. The issue has been raised in the Lords and it is a campaign by the Every Disabled Child Matters group. All of us in Committee sympathise with what that group has achieved; it has been very effective. I do not understand why the Government were not more sympathetic to adopting the proposal in another place, so I will be grateful for more clarification from the Minister in this place.

The Every Disabled Child Matters campaign welcomes the progress that the House of Lords made to improve the Bill for disabled children and young people, as do we. Part of that was the short breaks from caring provision, which we debated earlier and is greatly welcomed.

The new clauses would require local authorities to consider whether disabled children in long-term residential placements should have the protection and support of looked-after children status. They retain the flexibility to ensure that the right solution is found for each child and family, but make sure that every child placed away from home will have their safeguarding needs properly considered.

Looked-after status should include disabled children in long-term residential placements in education or health settings, some of whom are away from home for 52 weeks of the year with little or no parental contact. Looked-after status would provide a package of support for those children, including a contact plan to support parents to maintain contact with their children while they are away from home. We are talking about severely disabled children who require specialist placements. Those placements are few and far between and for many children will inevitably mean being a long distance from home, with implications and practical problems for keeping contact with their parents and other people looking out for them.

The few homes that offer those specialist services do a fantastic job. I have visited many of them and have seen the services and the dedication of the staff. Those long-term placements are for children who are not in the care system on account of having been taken away  from their birth parents because of abuse or other problems, but who are living away from their parents because they are severely disabled and require the intensive and specialist support that many of the homes and education or health settings offer.

The Every Disabled Child Matters campaign thinks that there is a gap in the system. The 2005 review of disabled children in residential placements recommended a more consistent application of looked-after status for disabled children spending long periods in residential placements, particularly those are far from home. That recommendation recognises that disabled children are three times more likely to be subject to abuse than their non-disabled peers, and therefore require much more robust child protection measures and support from the placing authority. There is widespread confusion on the part of residential settings, local authorities and parents about that, and Government research shows that guidance is too often disregarded. We are not talking about an enormous body of children. Recent statistics show that 338 children are placed in residential accommodation for 52 weeks of the year without the protection of looked-after status. The new clauses would send a clear message to local authorities that they should consider looked-after status for disabled children in long-term placements, to determine whether or not that is the best way to keep them safe.

The current system for allocating looked-after status is inconsistent and confusing for families, and it is not optimal for safeguarding vulnerable children. We are not trying to undermine the voice of the parents; the proposed approach would support the creation of partnerships between parents and local authorities, and those partnerships would maintain parental rights and responsibilities as set out in section 20 of the Children Act 1989. That section was designed as an opportunity to create such partnerships, and placements made under it are based on a voluntary arrangement between the local authority and the child’s parents. That does not affect parental responsibility, which remains with the natural parents. We are not stepping in to override the parents’ wishes and be unduly nannying.

To conclude, I shall outline the benefits of looked-after status for this small body of children. Disabled children living away from home without looked-after status miss out on a range of measures to support and protect their welfare. If looked-after status were given to those children, they could receive an allocated social worker, and a care plan that identified their needs and how those should be met, and which included the views and wishes of the child and their family. There would also be a health assessment and health plan, and a contact plan to promote contact between the child and their family, along with access to support for the costs associated with visits from the family. There would be an allocated independent reviewing officer to monitor implementation of the care plan and to ensure that the child’s views were being taken into account, and finally there would be regular reviews of the placement, and access to after care advice and assistance to support the young person’s successful move on from the placement.

The solution proposed by the new clauses put forward by the Every Disabled Child Matters group is a straightforward assessment process at the point of placement, to decide whether looked-after status would best promote a child’s welfare. The status would not be  compulsory. Parents and local authorities would decide together, with input from the child, whether measures that come with looked-after status, such as an allocated social worker and access to the support and protection they provide, would benefit the child. That, after all, is our primary consideration. The new clauses would be a positive addition to the Bill, and I genuinely do not understand why the Government did not respond more positively in another place. Perhaps they have had a change of heart, which I will be delighted to hear now from the Minister.

Photo of Lynda Waltho Lynda Waltho PPS (Rt Hon David Hanson, Minister of State), Ministry of Justice

I rise to speak to new clauses 33 and 34 in my name and that of my hon. Friend the Member for Bristol, East.

I am particularly keen to ensure that the Bill supports and protects disabled children who live away from home, many—as the hon. Gentleman said—of whom have profound communication difficulties. Those children are the least able to tell anybody how they feel—whether they are happy, settled or frustrated, or possibly scared or frightened. Those children are truly the most vulnerable of the vulnerable and that means that the state has to play a far larger role. The Bill provides us with a key opportunity to ensure that local authorities actively consider the welfare needs of disabled children when arranging long-term placements, some of which are for 52 weeks of the year. To include such a duty would represent part of the joining up of the “Every Child Matters” agenda, so that it would really work and every disabled child would truly matter, alongside their peers. There is no clear legislation that ensures that local authorities consider whether looked-after status would best protect the welfare of a child being placed away from home, in either a long-term educational setting or a health setting. Interestingly, however, when a child is placed away from home during a crisis, even if it is only for one night, that child automatically has looked-after status.

Children who will be living away from home for a large part of the year should have access to the benefits of looked-after status. It is really the gold standard, and offers almost the shopping list of benefits that the hon. Member for East Worthing and Shoreham read out; that is so important. All of those benefits are so vital to these vulnerable children: the allocated social worker; the care plan; the health plan, and the contact plan. Of course, if they do not get that looked-after status, they will only get a once-a-year review of their statement, and there is such a wide disparity there.

Photo of Kerry McCarthy Kerry McCarthy PPS (Rt Hon Douglas Alexander, Secretary of State), Department for International Development 10:00, 3 July 2008

As my hon. Friend mentioned, I have seconded the new clauses. Is it not the case that some placements are not available to children unless they have looked-after status, because of the extra support that goes with it?

Photo of Lynda Waltho Lynda Waltho PPS (Rt Hon David Hanson, Minister of State), Ministry of Justice

Indeed, there are schools and residential homes that will not accept children unless they have looked-after status. The work done at Sunfield school in the constituency of the hon. Member for Bromsgrove—it  actually has a Stourbridge address, so I feel that it is partly in my constituency too—is absolutely fantastic. It is run by Barry Carpenter and his staff, and it will not accept children without looked-after status. It is so vital that that status is conferred on these children.

Furthermore, conferring looked-after status will improve the transition of these children to adult services; that is something that the hon. Member for East Worthing and Shoreham did not mention. It makes that transition much smoother because, of course, the child is known to the authorities and these children are most likely to have continuing needs.

Recent ministerial statements made in the other place are to be welcomed and they show a movement towards this position of conferring looked-after status, indicating, I hope, that the Government agree broadly that most disabled children in long-term placements, where the local authority has been involved, should really be looked after. However, there is a great deal of confusion around this issue. Local authorities, residential placements and the Government’s own research in 2005 indicate that current guidance is sometimes disregarded.

The Every Disabled Child Matters campaign group and its partners are keen to see the Bill amended to reflect the Government’s move to this position. Such an amendment would send the clearest signal possible to local authorities that they should actively be considering conferring looked-after status in these cases.

I know that the Minister is likely to tell me that guidance already exists and that it is possible to strengthen the regulations. However, as we have already heard, there is evidence that the guidance is confusing, so why not take the opportunity now of amending the Bill effectively while we have the chance to do so, which would send out a strong signal?

I know that the ministerial team has also been looking at providing additional protection for these children by strengthening the visiting regime, but why should we set up a parallel system when we could offer what is really the gold standard of protection for our most vulnerable children and do so now? To suggest an alternative way forward borders on possibly relegating such children to second-class status, and that would not give them the support that looked-after status would. If there is a visiting regime, what status would it have? Would the people in that regime be students, or people unused to, for example, the profound problems and behaviours of a young person with severe autism?

I will briefly mention two case studies. Both children attended Summerfield school, which I have previously referred to. James did not have looked-after status but he should have had it. He had a severe learning disability, but his family was told by the local authority that it was not necessary for him to be looked after. He had no care plan and no formal arrangements to review his placement, except an annual education review. That meeting reviews his statement and his educational needs but not his overall well-being, and that is the important point. His mother has full parental responsibility but does not benefit from any support or assistance from the local authority. James did not have a named social worker. His mother has three other children and is a single parent. She has no car and can only afford to visit him, using public transport, maybe three or four times a year. She is not legally entitled to any assistance.

Adam, on the other hand, has a severe learning disability but is being looked after by his local authority. The local authority and his mother share parental responsibility. Adam has a care plan through which his needs are reviewed within school and on a wider basis. He has regular visits from a named social worker and a review twice a year that is chaired by an independent reviewing officer. Adam’s care plan provides for regular contact to see his mother and transport is paid for by the local authority.

To sum up, looked-after status is about safeguarding planning, target setting and monitoring for our most vulnerable children. For too long, there has been too much confusion from local authorities in this area. This is the time to end the confusion and send the clearest message possible. This is a crucial chance to put the situation right for the first time and create a clear duty that gives disabled children living away from home the same rights to support and protection as their non-disabled peers. I urge the Minister to grasp this chance and actively consider this proposal.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

Perhaps I should start by endorsing the comments that have been made to avoid being repetitive. I, too, would like to welcome the duty being put on local authorities for short breaks. That is important and is something that the Every Disabled Child Matters campaign fought for. It is important to identify areas where there is no clear legal duty. The new clauses ask local authorities to consider only whether disabled children should have looked-after status. We have been through all the advantages of this measure.

I, too, have looked at the case studies, but have chosen two different ones, which I would like to refer to briefly because they add further points to those that have already been made about vulnerability. This is the example of Thomas:

“Now that social services have given Thomas looked after child status, social services deal with all the difficulties and I can be a parent rather than a social worker.”

I thought that that was the most striking way of describing the advantages of looked-after status. It goes on:

“I also have the energy to be more assertive and to make positive decisions which are in Thomas’ interests, so when we have meetings with the social worker and other people involved with Thomas’ care, I am able to assert my parental authority.”

That is so important. In its way, it is as important as the short breaks in helping the parent to hold together and do the best for their child.

Secondly, I thought that the case study of Mark was rather telling. It states that

“when the government set targets for local authorities to reduce the number of children in the looked after system, we were put under some pressure to de-classify him as a looked after child.”

These parents had to fight to keep looked-after status. That shows how a local authority can respond to something that the Government said for particular reasons in a way that is not acceptable in this day and age and in light of the current debate. It is important to have this legal duty in the Bill to show that every disabled child matters.

Photo of Kevin Brennan Kevin Brennan Parliamentary Under-Secretary (Department for Children, Schools and Families) (Children, Young People and Families)

Welcome back to the Chair, Mr. Pope.

I have a great deal of sympathy with many of the remarks that have been made. There is accord across the Committee about this group of children and the problems that they face. I acknowledge the campaigning of hon. Members across the House and of the Every Disabled Child Matters campaign. We are all committed to ensuring that children placed away from home are not forgotten and that they are provided with the support and services they need to thrive. We are committed to the sort of change that all Committee members are looking for.

We should be clear that there is no gap in the legislative framework. The hon. Member for Mid-Dorset and North Poole said that there was no clear legal duty. In fact, clear legal duties are outlined. She quoted somebody from the case study talking about Government targets to reduce the number of people in the looked-after system. The Government have never had any such targets. Sometimes I think that we should have targets to reduce the number of myths about targets that the Government have never had. Of course we have never had such a target and we have explicitly ruled one out for obvious reasons.

As I have said, there is no gap in the legislative framework. Unfortunately, the changes that the new clauses propose would not address the problem that we are all seeking to address, not least because they all have a serious defect. They purport to require the local authority to consider whether a child’s welfare would be best safeguarded and promoted by he or she becoming a looked-after child, but that drafting does not fit with the existing legislative scheme of the Children Act 1989. Although the expression “looked-after child” is a useful shorthand term to refer to the bundle of responsibilities that local authorities owe to a particular group of children under the 1989 Act, in strict legal terms the defining issue is the provision of accommodation. The other responsibilities flow from that, such as the duties to maintain the child and make a plan for their short and long-term care and keep it under regular review, and the new duty to arrange regular visits.

I appreciate the objective that all the new clauses share. They seek to ensure that social services are actively involved in a timely and appropriate manner when a decision is taken to place a child in an institutional setting so that consideration is given in every case to the child’s social care needs. However, not only is the drafting flawed and therefore unacceptable, but the amendments that they would make would have no practical effect. The effect of the amendments to section 85, introduced by new clauses 6 and 33, would add nothing to the existing requirements in the provision whereby local authorities must consider the extent to which, if at all, they should exercise their functions under the 1989 Act with regard to the child. It is not possible for the local authority to perform that duty without considering whether the child is a child in need for the purposes of part 3 of the 1989 Act and therefore what services it should provide.

Similarly, the amendment to the education legislation proposed in new clauses 10 and 34 would have no practical effect. The legislation and the code of practice on special educational needs provide a comprehensive framework that clearly and explicitly requires education officers to seek input from social services professionals before making placement decisions. The legislation also requires education officers to ensure that social services  are notified when assessments are carried out, before placement decisions are made and again when the statement of special educations needs is reviewed. Section 85 of the 1989 Act imposes explicit statutory duties on local authorities exercising their education functions and on health bodies to notify the responsible local authorities at the time the placement in made. It also requires those local authorities to consider the extent to which they need to exercise their functions under the 1989 Act in relation to the child.

I agree wholeheartedly that more needs to be done to ensure that those children’s needs are met and that parents are properly supported in maintaining their role. Local authorities must perform all of those duties and obligations and develop with other public bodies a properly integrated approach that is capable of assessing children’s needs in the round and providing a multi-agency service. In particular, authorities must be discouraged from viewing children only through an education or health lens.

We do not agree, however, that these new clauses represent a legislative magic bullet. In our view, the key lies in improving social work practice and local authorities’ strategic planning and delivery. As a Government, we have obviously been striving consistently for more and better multi-agency working. That is why we brought in the Children Act 2004 and developed the children’s trust model of delivery. It is the rationale behind “Every Child Matters”, and that is why we will continue to work hard with local authorities to ensure that current practice, when poor, is brought up to the standard of the best.

The Bill includes provisions that build on and strengthen the existing framework under which local authorities are notified of, monitor and supervise all children who are placed away from home, regardless of the reasons for that placement. The improvements to the notification arrangements set out in clause 18 and the new visiting requirement set out clause 19 will make a practical contribution to improving practice and developing multi-agency working. We will supplement those new duties in the Bill with regulations and statutory guidance that will set out the clear requirements of the local authority visitor’s and our expectations of the services that local authorities should provide to support the active involvement of parents in their children’s lives.

As part of our revision of the statutory—[Interruption.] I will say that again because that was a rather loud ejaculation. As part of our revision of the statutory Children Act guidance, we will also set out our expectations of the actions that social services teams should take when they are alerted by their education colleagues to the likelihood of a child being educated at a residential school and they are involved in the decision making. There should be a presumption in every case that the child is likely to be a child in need, and an initial assessment should be undertaken in line with the framework for assessment of children in need and their families to assess the parents’ capacity to meet the child’s needs in the context of wider family and environmental factors. That assessment will identify whether a more in-depth, core assessment is appropriate.

However, we should be clear on one point, on which I think hon. Members will agree. Although that group of children is vulnerable in general and should therefore be considered for services, we must not forget that the children are all individuals and that their needs and family circumstances will vary depending on how much time they spend with their family, how far the placements are from their homes and whether they are intended to provide for the child in the long term. That is why, in the other place, we cautioned against the previous version of this approach—automatic looked-after status, which would constitute making an inappropriate assumption about family life.

We take these issues very seriously. We have been listening and I again point hon. Members to clauses 18 and 19 as evidence of our commitment to that group of children. Those provisions will be a lever by which to change practice and will support the other changes that we are introducing through work force reform. For example, with children who are placed by health in the national framework for children and young people’s continuing care, which the Department of Health has been working on closely with my Department and is publishing for consultation shortly, there is an emphasis on multi-agency working. We want to ensure that, wherever possible, there are multi-agency decisions involving education and social services on the provision of services to meet children’s long-term health needs, including accommodation provision. Ensuring that the social care needs of such a diverse group of children are met, whilst respecting their wishes, where possible, and their parents wishes, is particularly challenging, especially as their needs and their family’s needs will change as they grow and develop. That is why our clauses provide a solution as part of the wider “Care Matters” agenda, and will drive forward real change.

As I said at the outset, there is accord across the Committee on what we are trying to achieve. However, I understand and have listened closely to what hon. Members have said, and I undertake to look at the issues again. I will consider with my right hon. Friend how we might create the sort of changes that we all envisage, and whether there is anything that we can do, in addition to what I have outlined, to achieve that shared goal. We will continue our dialogue with hon. Members and with the Every Disabled Child Matters campaign, and we will come forward on Report with any conclusions that might be drawn from those further consultations once we have unpacked hon. Members’ practical concerns.

As I have said, we are committed to taking this opportunity to explore and establish best practice in this area, including how local authorities can best support continued parental involvement with a child in a long-term placement, and to capture it in our statutory guidance. On that basis, I hope that hon. Members will not press their amendments.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 10:15, 3 July 2008

We have had a helpful debate, but for the sake of clarity and Hansard, I shall refer to the inelegance of terminology that the Minister just used. Let me make it clear that his oratory was overcome not by an ejaculation but by a sneeze. We do not want the readers of Hansard to get any odd ideas about what goes on in Committee, do we? I know that his Welsh, fluent oratory can be terribly exciting, but it is not quite that exciting.

The Minister has said that the drafting of the new clauses is flawed—I would hate to dupe the Committee into passing a measure that was flawed—but he perfectly appreciates the aim of the proposals. Perhaps we need to revisit the measures so that they would have practical effects. However, I am still slightly confused. The Minister referred to the 2004 Act and the 1989 Act. Section 85 of the latter states that the accommodating local authority that has been notified should

“take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is accommodated by the accommodating authority”.

That measure is not quite as definitive and rigorous as the measure proposed by the hon. Member for Mid-Dorset and North Poole and that proposed by me and my hon. Friends. It is not clear from what the Minister said whether the terminology that is already in place, which is aided and abetted by this legislation and the regulations that will come with it, would give some of the additional safeguards that looked-after status would convey, such as the appointment of an IRO, the allocation of a social worker and contact plan, and so on.

I am pleased and grateful that the Minister has, in a spirit of positivity, said that he will look again at the issues to try to create change to achieve what he has acknowledged is our shared goal, but, clearly, the Every Disabled Child Matters campaign thinks that there is still a serious gap. It needs further assurances that those extra safeguards will be available to those children without formally offering them looked-after status. If the Minister could come back on Report and give rather more substantial guarantees to that effect, all sides might be satisfied, on the basis that there is a defect in the new clauses.

To go back to the proposal of the hon. Member for Mid-Dorset and North Poole, if some establishments decline to accept and accommodate some of those 300 or so children unless they have looked-after status, there is a problem in the system. Perhaps that is because the authorities do not understand the system or that they come up against practical shortfalls in providing the level of support that they rightly deem the children will need if they are accommodated. In any case, they need to know and we need to send out a clearer message. We might have the opportunity on Report for further debate on the proposals, and the Minister will get the opportunity  to send out that clearer message. There is clearly some confusion among various parties at the moment. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.