Children Act

Part of the debate – in Westminster Hall at 12:30 pm on 21st November 2001.

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Photo of Karen Buck Karen Buck Labour, Regent's Park and Kensington North 12:30 pm, 21st November 2001

I am grateful for the opportunity to raise this issue. The 35th anniversary of Ken Loach's groundbreaking documentary "Cathy Come Home" falls next month. The programme put homelessness on the post-war map by dramatically showing the effect it can have on attempts to keep families together.

A great deal has changed since that television programme was made. Indeed, it was part of the reason why changes took place. The safety net for homeless families has been strengthened considerably, most notably by the Housing (Homeless Persons) Act 1977 and, following a setback under the Housing Act 1996, the Homelessness Bill, which is going through Parliament. As I said in a debate on the Bill, it is attempting to rewrite "Cathy Come Home" with a happy ending, but, unfortunately and separately from mainstream housing legislation, two recent court decisions on the operation of the Children Act threaten to undermine some of the good work and once again raise the spectre of homelessness leading to parents facing separation from their children.

Under the 1996 Act, local authorities have a duty to provide accommodation for unintentionally homeless people in priority need, but where families with children are not to be housed by a housing department the Children Act provides a further safety net, which is particularly important when families are found to be intentionally homeless. Approximately 9,000 households are found to be intentionally homeless every year; the majority are families with children.

Decisions on intentional homelessness are notoriously complex. Shelter's experience is that local authority intentionality assessments are often harsh—I can bear out that experience from my case load—and in many examples inadequate. Housing aid centres often successfully overturn assessments when they can prosecute cases to conclusion. In addition, some authorities apply the letter of the law so strictly that households may be found intentionally homeless in circumstances that appear unjust. For example, a family may experience unexpected financial difficulty and sell their home to avoid falling into debt.

The consequences of being found intentionally homeless are severe. The household are given only limited time in temporary accommodation—usually about 28 days—and are often barred from the housing register. In such circumstances, their options are likely to be extremely limited. Private sector accommodation requires a deposit and rent in advance—resources that are beyond the reach of many homeless households. Again, I have extensive constituency experience of such difficulties.

The Children Act provides an important means to secure vital assistance for families with children when the housing department is not under a duty to house them. Families are often given assistance by social services authorities under section 17 of the Act. For example, help with a deposit or the rent is provided or, in some cases, accommodation, which may also be provided under section 20, is offered.

Although the combination of the duties placed on housing departments under the homelessness legislation and the powers available to social services under the Children Act has provided a reasonably satisfactory, though far from perfect, safety net for homeless families with children, the nature of the obligations on social services authorities under the Act has been considered in two recent cases.

The Court of Appeal decision of 11 April 2001 on the application for judicial review by G found that section 17 merely confers a power rather than a duty for local authorities to provide assistance and that the duty to provide accommodation under section 20 is one to house the child, not the parents with the child. The High Court reiterated that judgment in A v. London Borough of Lambeth on 25 May 2001. The decision was reconfirmed in the Court of Appeal on 5 November.

The decision of the courts in those cases is likely to have a significant impact on homeless families seeking assistance in finding accommodation from social services authorities. As a result of the judgments, social services authorities are likely to provide help in far fewer cases. When help is provided, it is much more likely to be an offer to house the children, without their parents, under section 20. It will be an offer to take the children into care.

In my judgment, that severely undermines the central principles of the Children Act: that the needs of the children are paramount and that families should be kept together wherever possible. Parents will clearly not want to be separated from their children and, in practice, it is likely that families confronted with a social services offer to take a child into care will search desperately for other alternatives to stay together, no matter how inadequate or short term.

I am conscious of the fact that such threats and pressure may be a salutary experience for families that get into difficulties with rent or mortgage arrears or whose older children become involved in antisocial behaviour, but, when the final penalty is applied and the families are effectively homeless and without further call on public support having exhausted their various options, it can lead to a rapid deterioration in family circumstances.

The result may be that families sleep on friends' floors, often in highly overcrowded and volatile circumstances, and I have experience of families and children sleeping in cars. Furthermore, enhanced mobility makes it difficult to track families, particularly those with younger children. I do not want to overplay the situation, but the Victoria Climbie inquiry shows the dangers for that small minority of children who fall through the service net. Such mobility may lead to teenage boys and girls drifting into casual arrangements with friends or girlfriends, which are unsuitable in terms of minimising the risk of becoming involved in unfortunate circumstances such as unplanned pregnancy or antisocial behaviour.

I accept that parents may be at fault and that some intentionality decisions are justified according to the letter of the law, but that does not justify the unacceptable risks arising for families from the removal of all the legislative safety nets.

I refer briefly to a letter sent to me by ATD Fourth World following the recent article on the issue in The Observer. It makes a point that I agree with:

"Most of the families we work with have had experience of being in care as children . . . again and again we see evidence that the deeper the poverty of the family, the wider the range of disadvantages they struggle with, the more likely they are to lose their children rather than get long term help and support to stay with them."

I shall run through cases that have come to Shelter's attention as a result of the recent judgments. One involves a family with children aged six, 10 and 13. There were no health or child protection issues and the household were found to be intentionally homeless because of rent arrears. They stayed with in-laws until asked to leave and they then approached the homeless persons unit, which refused to assist. They slept on the streets for a night and returned to the homeless persons unit, which referred them to social services.

Social services said that no help could be provided for the family as a whole and offered to take the children into care. Shelter contacted the social services department to arrange an assessment under the Children Act. The parents called back the next day to say that they had been refused additional assistance. At that point, Shelter lost contact with the family. That is exactly the risk of vulnerable families falling through the net to which I referred.

The second case involves a woman with mental health problems stemming from being sexually abused as a child. She brought her assured shorthold tenancy to an end because she could no longer afford the rent. She has two children aged 15 and 10, and the youngest, who attends a special needs school, has learning difficulties. They approached the local authority for assistance under the homelessness legislation and were placed in hostel accommodation for a month.

The family were then found to be intentionally homeless—a decision that was upheld on review—and they applied to the social services authority for assistance under the Children Act. It offered accommodation for the children only when the hostel accommodation was no longer available. The woman refused the offer.

The housing department has sought possession of the family's hostel accommodation. With representation from Shelter, the possession order has been delayed for six weeks, and a judicial review is now under way against the social services authority. Although the opinion of the health authority community care team is that the mother is vulnerable and in need of on-going support, and that her condition is being exacerbated by uncertainty about her housing and fear that her children will be taken into care, the recent court decisions mean that the prospect of success is weak.

Another family, with two children aged six and three months, were refused assistance by the housing department. They stayed secretly in a friend's room in a single person's homelessness hostel. The hostel found out, and asked them to leave. They sought advice from Shelterline, which arranged for them to be referred to social services for an assessment under the Children Act. Social services responded by offering to take the children into care. Although the mother was still breastfeeding her three-month-old baby, they told the Shelterline adviser that separating the children from their parents was not against their best interests, and no further assistance was offered.

Shelter has been involved in other cases. I am currently dealing with two. On Friday, the mother of an 11-year-old was told to leave her homelessness accommodation. I do not query the validity of the intentionality decision; I do not know whether it is correct or not. What I do know is that the mother refused a review, and then consulted me on the day on which she was due to leave. I have reason to suspect that anyone who refuses a review in such circumstances is confused and vulnerable, and in need of a high level of assistance.

Another case involves the mother of five sons, two of whom, regrettably, have been involved in serious antisocial behaviour. The family face eviction, and an offer has been made for the three youngest children to be taken into care by social services. I have no doubt that the family are likely to end up sleeping casually and with friends in the area where the antisocial behaviour was occurring, and that the proposal will not offer a long-term solution.

A number of people have written to me since The Observer article, pointing out that part of the problem is that it is becoming increasingly difficult for families on housing benefit or low incomes, and particularly families with a chequered housing history, to gain access to private rented accommodation. Alternative provision, particularly in London and the south-east, simply does not exist.

I raised these issues in July, in the Standing Committee considering the Homelessness Bill. In last week's Second Reading debate in another place, they were raised by several peers. Lord Falconer said that the Government took the matter very seriously and were giving it careful consideration, and that he intended to meet representatives of local authorities and social services and report what they had said. I am sure that he is doing that, and I welcome the seriousness with which he is taking the issue.

I have had my own conversations with representatives of local government and social services, who have described court decisions on the Children Act as retrograde steps. They have also made important points about the resource implications for hard-pressed social services departments.

I know that the problem is being addressed. My aim is to push things further, especially in the context of legislation currently being considered in Parliament. I believe that sections 17 and 20 of the Children Act, which have been called into question by the courts, should be amended to strengthen social services' duty to give assistance to homeless families with children. Guidance should not be sufficient. In the case of R v. Lambeth Borough Council ex parte A, Lord Justice Laws said:

"The guidance is not a legal resource for the construction of the statute".

Guidance therefore will not be sufficient. I hope that if the Homelessness Bill cannot be amended—and we were advised that such amendments would be outside its scope—an amendment can be tabled to the Adoption and Children Bill, which is currently before a Special Standing Committee in the House of Commons.

The court cases have thrown up a serious issue that particularly affects vulnerable families at a time of nothing less than housing crisis, especially in London and the south-east. It is essential for the Government to use whatever opportunities are available to close the loophole.

I am grateful for the opportunity to raise the matter, and I look forward to the Minister's reply.