Children and Young Persons Bill [Lords]

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Tim Loughton: I am grateful for the Minister’s explanation. I thought that she was going to say, “This is a jolly good amendment, and we will accept it.” That would have been a turn-up for the books. However, we seem to be on the same lines.
My concern, however, is about striking a balance between recognising the particular vulnerabilities and requirements of 16, 17 and 18-year-olds coming out of the care system and respecting their transition into adulthood—as the Minister put it. Local authorities should not use that as an excuse by saying, “Well, we don’t need to trample on them.” As I have said, and given evidence on, those children are much more susceptible to greater problems than their rest of their cohort. I have some other figures on the health aspect: two thirds of all looked-after children were reported to have at least one physical health complaint, and 45 per cent. of those aged five to 17 were assessed as having at least one mental health disorder, compared with one in 10 of the child population overall. That is an enormous difference in vulnerability.
As we know, such problems, particularly mental illness, need to be addressed as early as possible, and there needs to be a continuum of care until somebody can stand on their own two feet. All too often, the child and adolescent mental health services—Cinderella services within the Cinderella service of the NHS—can be erratic and a postcode lottery. Certainly, if children in the care system are fortunate enough to access CAMHS—perhaps through being in a residential home where, as a result of the high fees charged, they buy in mental health services, because of the waiting list for, or lack of availability of, certain talking therapies locally—but then effectively enter the big wide world on their own, without support from the mental health services, we have a false economy. It will result only in that person being less able to stand on their own two feet during the transition into adulthood, as the Minister said.
Amendment, by leave, withdrawn.
Tim Loughton: I beg to move amendment No. 4, in clause 8, page 6, line 15, leave out from ‘State’ to ‘in’ in line 16 and insert
‘must discharge functions under this section in a manner consistent with the objectives of safeguarding the welfare of children as set out’.
The Chairman: With this it will be convenient to discuss amendment No. 26, in clause 8, page 6, line 17, at end insert
‘and to the provisions of the United Nations Convention on the Rights of the Child.’.
Tim Loughton: This is one of those annoying little amendments that usually centres on the use of the word “must”, of which we have many. However, this is a slight variation. The genesis of the amendment goes back to debate on the Children Bill 2004, when my hon. Friend the Member for Epping Forest (Mrs. Laing), who was helping me on the Front Bench, tabled an amendment to clause 8. The amendment would have replaced a provision about functions being discharged having regard to the need to safeguard and promote the safeguard of children with
'in a manner consistent with the objective of safeguarding and promoting'
the welfare of children, which was rather punchier. “Having regard to” covers a multitude of sins. It does not necessarily mean that the agency that is bound to have regard to something has to do anything about it. It must only acknowledge that there may be a problem or that a service needs to be delivered. As long as it has regarded it, it does not need to follow it through. That terminology is too weak, and I fear that in too many cases it can be used as a get-out clause for not producing the goods.
12.45 pm
The amendment is to clause 8(5), which contains the limp language that the Secretary of State,
“in discharging functions under this section, must have regard to the aspects of well-being mentioned”
in section 10 of the Children Act 2004. We want to replace that with much punchier terminology that means something, so that the Secretary of State
“must discharge functions under this section in a manner consistent with the objectives of safeguarding the welfare of children as set out”
in section 10(2)(a) to (e) of that Act. Those paragraphs contain the Every Child Matters imperatives of
“physical and mental health and emotional well-being; protection from harm and neglect; education, training and recreation; the contribution made by them to society”
“social and economic well-being.”
Section 10 of the Children Act is a much more positive promotion than clause 8. It states:
“The arrangements are to be made with a view to improving the well-being of children”
in relation to those various factors. We are trying to give the Secretary of State a bit more vim, stating that he must not just have regard to, but positively promote, the considerations in that section. I am therefore sure that the Minister will have no problem in saying that the amendment is worthwhile and constructive and will strengthen what the Bill is intended to do. I shall be surprised if she ducks that challenge.
Annette Brooke: I, too, look forward to the Minister’s response to that interesting presentation of the amendment, which seemed to make a lot of sense.
I wish to speak briefly to amendment No. 26. It will not be the first time that I have spoken to such an amendment to legislation on children. As with our previous debate, we might get there eventually. It is always interesting to note that the UK played a leading role in drafting the UN convention on the rights of the child, and that the previous Government were an early signatory of it.
In October, the UK’s implementation of the convention will be examined for the third time by the UN Committee on the Rights of Child. It is not enough to sign up, it is all about implementation. One of the committee’s 78 recommendations made in 2002 was that the UK should incorporate the convention into domestic law. Although the amendment would not give children new rights that could be tested in the courts, it would introduce a children’s rights proofing process that we have not so far incorporated into our policy development and legislation. The hon. Member for East Worthing and Shoreham and I were in a meeting about children’s rights not long ago, and a social worker said that one of the most important things that would make a social worker’s life clearer and promote the career would be working to a rights agenda. That was a telling comment, coming from somebody who actually works with children.
Of course, there are a number of articles of the convention, and I do not propose to mention many. However, I shall touch on article 12, which begins:
“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child”.
I appreciate that the Government have made great moves forward in listening to children. Nevertheless, there are some issues in the Bill on which we think the child’s voice could be strengthened, in certain cases with the support of advocacy. The importance of having a guardian is another issue. A number of issues perpetually arise that would be tackled if we incorporated the convention into our legislation.
I would like to mention briefly that the UK still has a reservation on article 22 of the convention on the rights of the child, which relates to the protection of asylum-seeking children. I was quite heartened in January when the Government announced plans to re-examine that reservation. I would be interested to hear an update on that alongside the news that we have had this morning.
Many of the issues that we are raising through amendments would automatically come under consideration if we signed up to the UN convention. It is common sense that our children’s rights should be respected and that we should incorporate the convention into all legislation that touches on children’s issues. I commend amendment No. 26 to the Minister.
Mr. Kidney: Mr. Pope, let me say that it is a great pleasure to serve on this Committee under your kindly but hawk-like, miss-nothing eye.
I will speak in favour of amendment No. 26. As the hon. Member for Mid-Dorset and North Poole has said, this is not an amendment to incorporate the obligations under the UN convention on the rights of the child into UK law. In my view, that is a pity because I think that we should incorporate those rights. We have done some great work for children since 1997 with the target to eradicate child poverty, the “Every Child Matters” agenda, the “Quality Protects” programme for looked-after children, the Children (Leaving Care) Act 2000 and now the “Care Matters: Time for Change” White Paper.
With the children’s plan last year, I think that the time is right to incorporate the convention into our law. Instead, as the hon. Member for East Worthing and Shoreham said, the use of the language that the Secretary of State “must have regard to” is a backsliding and easy target for him to hit. I hope that my right hon. and hon. Friends the Ministers do not think it very demanding to expect Ministers to have regard to the convention’s rights when carrying out their duty to promote the well-being of children in England. After all, all Ministers sign up to the ministerial code, which states that they have an overarching duty to obey the law, including our international obligations. The UK has signed the convention.
Do the Ministers think that the amendment is a sensible first step on the route to the wider acceptance of the rights in the UN convention? When we agreed clause 7, there was an encouraging sign that we would do better for unaccompanied asylum-seeking children. We are going in the right direction, and this would be another step in that direction. If there is a clinching argument that my right hon. and hon. Friends the Ministers will accept, it is that the General Social Care Council, which was established by the Government to set standards for conduct and practice in social care, supports amendment No. 26 and thinks that it should be passed.
Beverley Hughes: I hope that no Opposition Member would ever accuse me of trying to duck issues. I share the spirit of what both amendments are trying to achieve. I hope I can convince hon. Members that the way in which we have formulated the well-being duty in clause 8 is intended to achieve the ambitions that they have set out.
It is important to remember that the definition of well-being in the Children Act 2004, which we are using as our basis, reflects the whole range of outcomes that we want for children. It includes their physical and mental health; their emotional well-being; their protection from harm and neglect; their education, training and recreational needs; their contribution to society and their social and economic well-being. Those are all vital factors in determining whether children have the enjoyable childhood that we want them to have as well as being prepared and supported so that they can succeed in later life.
Local authorities and schools already have a duty to promote the well-being of children as defined in these terms. In the clause, we are keen accurately to reflect the Secretary of State’s general policy responsibilities in a manner that complements the operational responsibilities of local children’s services and introduces a consistent focus on children’s outcomes at every level of the system.
The problem with amendment No. 4, as formulated, is that it would narrow the Secretary of State’s well-being duty to a focus on safeguarding alone and disregard the other key aspects of well-being. Of course, safeguarding is a top priority, and it was a key driver in “Every Child Matters”, but as I have just outlined, the outcomes that we want to see under “Every Child Matters” go beyond safeguarding into various other areas.
The clause is not phrased in weasel words. It says:
“It is the general duty of the Secretary of State to promote the well-being of children in England.”
What could be clearer? The hon. Gentleman has contributed positively to many pieces of legislation on children and other areas of policy, and he is experienced enough to know that the fact that subsection (5) uses the phrase “must have regard to” before pointing to the relevant sections of the Children Act means that the Secretary of State must exercise the specific duty in the clause in relation to sections 10(2)(a) to (e) of the Children Act. It is therefore a little unfair to suggest that the duty that we are trying to place on the Secretary of State to promote well-being falls short of our intention.
Tim Loughton: I am disappointed so far, but perhaps the Minister can tell me what weight she places on the phrase “have regard to”, as opposed to the phrase
“in a manner consistent with the objectives of safeguarding the welfare of children”,
which is in the amendment. Does she not acknowledge that the wording of amendment carries more punch and is stronger than “have regard to”, regardless of whether it refers to the duty in subsection (1)? The wording in the amendment is stronger. Local authorities have had problems with the interpretation of the phrase of “have regard to”.
Beverley Hughes: I do not accept the hon. Gentleman’s premise. In legal terms, “have regard to” is equivalent to what he has outlined. Indeed, Opposition Members argued not long ago for a section 11 duty on the Border and Immigration Agency, so they were apparently happy to accept that having “regard to” the need to safeguard children was a strong enough formulation to impose on that agency and all the agencies listed in section 11 of the 2004 Act. Opposition Members accepted that the wording was strong enough in that situation, so I hope that the hon. Gentleman will accept that using the same terminology here—as parliamentary counsel will—gives us a strong enough formulation of the duty, particularly in conjunction with subsection (1), which makes very clear what the duty is.
Tim Loughton: For the avoidance of doubt, I should say that we argued for an amendment to the effect that the wording should not be “have regard to” for all the other agencies on the list, but the Government defeated us. We are just trying to be consistent in terms of what goes into the legislation; our current proposals do not signal any weakening of our intent with regard to the Border and Immigration Agency.
Beverley Hughes: I was not a member of the Committee that discussed the 2004 Act, but Opposition Members need to think whether the phrase “have regard to” has weakened the pursuit of the objectives before us by the agencies concerned, because I do not think that there is any evidence that it has. The wording in the clause is the normal way in which we express such obligations legally. Taken in conjunction with subsection (1), it makes clear what our intention is.
It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.
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