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Session 2007 - 08 Publications on the internet General Committee Debates Children and Young Persons Bill [Lords] |
Children and Young Persons Bill [Lords] |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks † attended the
Committee Public Bill CommitteeTuesday 1 July 2008(Morning)[Mr. Greg Pope in the Chair]Children and Young Persons Bill [Lords]Clause 11Independent
reviewing
officers Amendment
moved [26 June]: No. 35, in
clause 11, page 10, line 13, leave
out from beginning to ‘it’ in line 14 and
insert
‘Whether or not the
independent reviewing officer is an officer of the local
authority,’.—[Mr.
Kidney] 10.30
am
The
Chairman: 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.’. Mr.
David Kidney (Stafford) (Lab): 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. Mr.
Edward Timpson (Crewe and Nantwich) (Con): 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?
Mr.
Kidney: 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. Mr.
Andrew Turner (Isle of Wight) (Con): That is interesting.
Will the hon. Gentleman indicate whether those views differ across the
country?
10.45
am
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