Mr.
Davey: I am sure that the hon. Gentleman is pleased that I
gave him the chance to clarify that. I do not demur from his overall
point; no one would who had read Lord Laming’s conclusions about
the agencies in the Victoria ClimbiĆ(c) case. Let us remember that
social workers, nurses, doctors and police officers were involved in
that case. Lord Laming described their failings as a disgrace. Given
that sort of finding in a major public inquiry, it seems odd that we
should exempt such services as the Government have done. Given that
very recent experience, I really do not understand the
Government’s thinking.
I think that I am right in
saying that the clause was not in the draft Bill and was therefore not
considered by the Joint Committee. It is therefore incumbent on this
Committee to ask some searching questions, because none of our
colleagues had a chance to consider the clause during the
pre-legislative
stage. I am drawn to
the explanatory notes, which also do not suggest precise thinking. In
relation to clause 8, they
state: “It is
unlikely that such
bodies”— child
protection services and the probation
services— “would
owe a duty of care should a person be killed in connection with such
activities (for example, if a child was not identified as being at risk
and taken into care and was subsequently fatally injured). This clause
makes it clear that such circumstances are not covered by the
offence.” That suggests
that the Government want to ensure that there is no liability if a
social services department fails totally to identify a risk to a child.
If that is the case, they need to define the circumstances more
carefully. Given Lord Laming’s findings, there is no doubt that
social services should have identified the risk in the case of Victoria
ClimbiĆ(c). I am worried that the clause creates a blanket
exemption that will not enable bodies to hold social services to
account properly when they fail
miserably. I
appreciate that the area is particularly difficult, but let us remember
who will make such a case. Presumably it will not be the parents, and
it might not be the guardians. Who will make the case? It might be
another family member—say, a grandparent—who is concerned
that there was a failure, so we also need to pay attention to the
dynamics of how the process will work.
I hope that the Minister will
give a rather greater explanation than the explanatory notes do and
that he will reflect on our comments, given the lack of scrutiny that
the proposal has received to
date. Tony
Lloyd (Manchester, Central) (Lab): Ever anxious to help my
hon. Friend the Minister, I too share the concerns that have been
expressed, but, although I understand the arguments that the hon.
Member for Beaconsfield made about the probation service, I think that,
with regard to the application of the Children Act 2004, we ought at
least to examine carefully whether we have got the balance right in the
Bill. We know as a
matter of fact that although there are many examples of good child care
in our social services, there have also been some awful examples, where
the questions why things went so tragically wrong have rightly been
debated. That is particularly true of the Victoria ClimbiĆ(c) case,
but it is true of other cases too. With that background, Parliament
must provide a legislative framework that establishes where the
boundaries of legitimate care should lie and where there might need to
be exemptions from the duty of care under the Bill, in order to give
proper protection to those working in the difficult field of child
care. My concern is
the same as that which has already been expressed, namely that the
boundaries in the clause seem to have become much wider is necessary to
give proper protection to those working in child care. Had the Bill
been on the statute book at the time of the Victoria ClimbiĆ(c)
tragedy, it is arguable that corporate manslaughter legislation might
have been an appropriate legislative vehicle for prosecution of the
authorities involved, but subsection (2) as drafted could had have the
consequence of putting that possibility out of reach.
I know that that is not what my
hon. Friend the Minister intends. I simply warn him that we face the
potential for long-term public ridicule if, having established the
legislation with good intention, we found that it could not be used in
precisely the circumstances in which we would want it to be used.
Hopefully, my hon. Friend the Minister can help the Committee and
alleviate a common concern. He may have good and appropriate answers,
but I hope that he can register the fact that, at present, it seems as
though the provision may have been drawn a little too broadly.
3
pm
Mr.
Sutcliffe: I welcome the debate and the consistency of the
argument. The same points have been made repeated: the clauses are too
wide and miss the mark of what we are trying to achieve. I am grateful
to my hon. Friend the Member for Manchester, Central (Tony Lloyd) who
said that we did not intend that to happen; clearly it is not. We have
cause to look again at some issues, and I shall come back to them
later. We have tried to make the case in relation to the police, and
the fire and emergency services, but I accept and acknowledge the
services dealt with in clause 8 are more difficult to deal with, if
that is possible, because of the issues
involved.
Members of the
Committee have accepted the difficulty of dealing with children at risk
in extraordinarily difficult circumstances. Local authorities and their
partners do everything that they can to identify and meet the needs of
children at risk of harm, but their success cannot always be
guaranteed. Determining the best interests of a child requires a
careful balancing of many factors. The courts have had real
difficulties deciding what duties of care are owed by local authorities
in such circumstances. They have found that it may well be
inappropriate to subject a local authority to a duty of care in respect
of decisions relating to taking children into care. That would, of
course, mean that the offence would not apply. That is the sort of
activity in which public policy and exclusively public function
exemptions are also likely to have a
role. However, we do
not want to leave residual uncertainty. Public authorities must be left
in no doubt about their criminal liability. I have tried to be
consistent throughout. I know that the hon. Member for Kingston and
Surbiton (Mr. Davey) thinks that we have removed Crown
immunity with one hand, but brought it back in with the other, but that
is not our intention. We want to make sure that we take a significant
step forward—that services are delivered in the way that we
would expect and that public authorities know what their criminal
liabilities will be. We do not want to encourage them to become risk
averse, particularly in the field of child protection, with the
possibility that children could be removed from their families
unnecessarily on the one hand, or that the authorities might be less
proactive in seeking out and tackling child abuse and neglect on the
other
hand. The
offence is not aimed at individual decisions and would apply to the
organisation and management of child protection activities. However, we
do not want the systems and procedures for making such decisions to be
affected by the fear of investigation and prosecution. That could
create an over-cautious view, affecting the fine balance that is needed
in such
decisions.
Mr.
Davey: Will the Minister give
way?
Mr.
Sutcliffe: I want to pursue the points that have been
made. I accept that the hon. Gentleman is consistent in his efforts to
challenge me, but let me try to make the case and we can see where that
leads. We want to
make sure that the decisions that are taken are advantageous and good
for children and families. [Interruption.] I will give way first
to the hon. Member for Kingston and Surbiton, after which I shall give
way to the hon. Member for
Beaconsfield.
Mr.
Davey: The reason why the issue of risk aversion does not
apply to child protection services is that the decisions that are made
on withdrawing children from their families go before courts anyway.
External people are overseeing the decisions made by social workers and
their partners. We already have a check, so the Minister should not
worry that, by applying the offence to child protection services, it
will make them any more risk averse or change the incentive structure.
They rightly already have overseeing bodies, primarilythe
courts.
Mr.
Sutcliffe: I accept what the hon.
Gentleman is saying. The bodies and the framework that are in place for
protecting and making local authorities accountable are helpful in such
circumstances. However, consistent with the arguments that I have made
in respect of other services, risk aversion is an issue that we have to
face. The hon.
Gentleman is correct about the accountability framework for local
authorities in child protection work. When children are killed, and
abuse or neglect are suspected, serious case reviews are commissioned
by the local safeguarding children board. Those reviews look in detail
at the involvement of services with a child or young person. The focus
is on how to learn lessons for the future. There is also a statutory
requirement to report the deaths of children in local authority care to
the Commission for Social Care Inspection and to the Secretary of
State. In very serious cases of failure a public inquiry may be
held. Those are all
rigorous, thorough and very public forms of accountability whose
inquisitorial format allows a full picture of the failings that led to
a death to emerge. All of the inquiries that I have described produce
recommendations which drive improvements in the provision of services.
That is the sort of accountability that the public services
need—not prosecution under the criminal
law.
Mr.
Grieve: Does the Minister think that there might be an
argument, in child protection cases, for distinguishing between, on the
one hand, decisions to make a place of safety order or take a child
into care and bring care proceedings and, on the other hand, decisions
taken when a child is actually in care? Once a child is in care the
public rightly take the view that there is a special responsibility. Is
there not an argument to be made that if a child dies while in the care
of a local authority the exemption should be
lost?
Mr.
Sutcliffe: When I have concluded my remarks the hon.
Gentleman will understand that I believe that there are indeed areas
that we need to consider. As the amendment is a probing one, there are
issues to which we need to return. However, I am trying to set
outthe Government’s consistent approach on when
exemptions are
appropriate. The hon.
Member for Kingston and Surbiton asked about the lack of
pre-legislative scrutiny of the provision. As an exclusively public
function, child protection was excluded under the terms of the draft
Bill. It was addressed, but there was no explicit exemption—that
is the
difference. The
exemption is not intended to exclude from the offence the services
offered generally by local authorities to children and families. Once a
decision has been taken to provide a service or to meet an assessed
need—for example, home help for the parent of a disabled child,
or accommodation for a child who is being looked
after—management failure in providing or commissioning those
services should be covered. Clearly, some decisions will be subject to
the exemption for public policy decisions, such as decision on the
range and level of services to be provided. Some services might be
exclusively public functions, such as the review of plans for the
future care of a child who is being looked after. However, the
intention is that, subject to those limits, the offence
should apply generally to services provided to children and families.
Our intention is to focus on the particular difficulties raised by
child protection
responsibilities. James
Brokenshire: An example springs to mind and I should be
grateful for the Minister’s clarification of whether it would
fall within the scope of the exemption. I am thinking of a decision to
place a child who has been taken into care with foster parents. If
systems were so flawed and manifestly appalling that checks had not
been carried out on the foster parents, and if it were later discovered
that they had committed offences against children in the past, would
that gross failure be captured? That is the type of scenario that we
are all keen to avoid. It may need to fall under the sanction of the
Bill, to ensure that appropriate steps are taken to ensure that it does
not happen.
Mr.
Sutcliffe: The hon. Gentleman is correct about our
intention to cover such a situation. The question is whether the words
in the Bill meet that intention. In the circumstances he describes, I
would not want the exclusion to
apply. I
acknowledge the Committee’s direction of travel, albeit I do not
agree with it 100 per cent. None the less, I recognise the need to
examine the exemption to confirm that it is adequate. My hon. Friend
the Member for Manchester, Central said that we do not want to get into
the ridiculous position of trying to achieve the Bill’s aims and
objectives, but making a gross error in terms of exemptions. I do not
see it that way. It is right for us to pursue the exemptions in the way
that we have. The exemptions that we want, particularly on child
protection responsibilities, are important. However, I would be happy
to review whether we can frame the legislation in a more appropriate
way, so that we do not cause the problems that have been
described. The hon.
Member for Beaconsfield discussed probation service issues that are
similar to those that we discussed in respect of the prison service. I
hope that Committee will acknowledge the Government’s intentions
and what we are trying to achieve. I am prepared to review the clause
in the spirit of trying to be a bit more precise about what the
exemption covers, and I hope that that guarantee will allow the hon.
Gentleman to withdraw the
amendment.
Mr.
Grieve: I am grateful to the Minister for his comments,
and I will beg leave to withdraw the amendment. I fully acknowledge
that this is a difficult area. At the risk of repeating what I said
earlier, if there is a way to compartmentalise the different duties,
the point to centre on may be the difference between the obligations
owed to a child once it is in care and those owed to a child who is
outside of care. I accept, however, that some would argue that those
distinctions are rather artificial. After all, if a local authority is
weighing up whether a child should go into care, one would hope that
its decisions would be as sensible and its duties the same as if it
actually had the child in its
care. We should
consider that we are sending a message to the public about the duties
incumbent on public authorities. Once the decision to take a child into
care has been made and the court process has been gone
through, what will happen if the child subsequently dies because of
gross management failures within the organisation? My hon. Friend the
Member for Hornchurch (James Brokenshire) gave the example of a child
being placed with foster parents who kill the child. What if it could
be clearly shown that there were danger signs, or if the child was
allowed to visit its natural parents when there had been warnings that
that might be dangerous for the child? I grant that those are still
difficult areas for local authorities, but I believe that the public
will be shocked by the idea that if there are gross negligence
failures—that is what we are talking about, after all—it
is not possible to prosecute the organisation
concerned. | 
