Children and Young Persons Bill [Lords]

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Mr. Timpson: Will the Minister clarify what consideration is being given to a sibling group? The way the legislation is drafted, each child will have its own independent reviewing officer but there may be circumstances—we see it already in the current system—where two or more siblings have the same independent reviewing officer. Whether that is done for convenience or cost or is really necessary is still unclear. Will there be a commitment to ensure that each child’s case is looked at individually rather than a sibling group being looked at in the round and given the same independent reviewing officer, even if each sibling’s needs are different?
Beverley Hughes: It is very important that those decisions are made in relation both to the needs of each child and the needs of children as a group. If each child has their own independent reviewing officer for reasons to do with their particular circumstances, it is clearly very important in those circumstances that all the independent reviewing officers talk together about the needs of the individual versus the needs of the children as a group, and communicate about decisions that are often very difficult. The bottom line is that if each individual child needs to have an independent reviewing officer, that should be done. We must ensure that each individual child’s needs are catered for.
We will also introduce a requirement for the IRO to ensure that the local authority gives due consideration to any views expressed by the child. We will strengthen the guidance on the role of IROs by defining a significant event when a review must take place before any proposed change affecting the child can occur. We will update the guidance so that a referral by the IRO to CAFCASS is no longer seen as the last resort, but considered as a real option to ensure proper scrutiny of local authority decisions in any cases where the individual IRO believes it is appropriate to escalate any well founded professional concerns.
We will amend guidance to specify optimum case loads for IROs because, at present, we know that one of the factors in the failure of the IROs to fulfil the promise that we felt they had in the original legislation is the variability between local authorities in the size of IRO case loads. As I mentioned, that is impeding effectiveness in some services.
We will address statutory guidance to the IROs themselves on the importance of maintaining their independent voice in care planning, and on how to perform their role more effectively. It will be the first time that statutory guidance of that sort, on how to perform their role, will have been issued.
Finally, we will set out in regulations a description of the IRO similar to that in the Review of Children's Cases (Amendment) (England) Regulations 2004 that specifies the qualifications and experience the IRO must have that requires him or her to be independent of the management of the case. That is a point raised by the hon. Member for East Worthing and Shoreham. To clarify, regulations already require that the IRO must be registered as a social worker with the General Social Care Council and must have sufficient experience to undertake the functions. We will set out that description more fully in regulations.
Further, we will also expect IROs either to have the skills or to be able to access the specialist input necessary to elicit the views of children with communication difficulties or complex needs, and to do that effectively. Again, to answer a question raised by the hon. Gentleman, in developing the guidance around this expectation, we will undertake research on the type of support and skills that are required. That will include where advocacy, particularly specialist advocacy, might provide useful additional support to children. Through that research, we will look at any capacity problems in relation to that specialist expertise.
Amendments Nos. 33 and 36 would require the independent reviewing officer to give information to the child about independent advocacy. I am happy to commit to address that point in the new statutory guidance that will be issued directly to IROs for the first time following this Bill. We will ensure that the guidance makes it clear that the IRO should seek the assistance of a professional independent advocate if they are unable to ascertain the child’s wishes and feelings. The members of the National Children’s Advocacy Consortium have already discussed this with us and they will be consulted closely during the development of the guidance.
Those amendments also seek to require the local authority to make arrangements for the provision of an advocate when the need for one is identified. That is not necessary, as it would simply duplicate existing law. The Advocacy Services and Representations Procedure (Children) (Amendment) Regulations 2004 already require that when a local authority becomes aware that a child or young person wishes to exercise their right to make a complaint or other representation about services they receive, the authority must provide them with information about advocacy services and offer help in obtaining an advocate. Our reforms both to practice and to the legislative framework will mean that we can deliver a system that puts the voice of the child at the centre. I hope that on that basis, and given our commitment to address those points in the new guidance issued directly to IROs, my hon. Friend the Member for Stafford will be satisfied and feel able to withdraw the amendment.
Turning to some of the specific questions raised by amendments Nos. 12 and 35, regarding IRO independence and the duty of a local authority to co-operate whether or not they are officers of the authority, I completely understand the concern about IROs independence. In developing the policy, I grappled with that over a long period. My inclination initially was to go for a completely independent national service. However, when we looked at it in detail, my view changed.
In consulting a very wide range of people, we found little consensus on why IROs have in some areas failed to have the impact on improving professional practice that we had hoped for. The evidence was insufficient to enable us to determine whether perceived shortcomings in case review processes were attributable, for example, to weakness in training and support or the variation in caseloads, or whether there was a more fundamental problem with the whole structure. It is also worth saying that the statutory framework for IROs only came into force in September 2004.
I was persuaded in the end, not least by the views of some key stakeholders, including the Family Justice Council, which told me:
“The drastic step of relocating responsibility for IROs outside local authorities, for example within CAFCASS or some other independent organisation, demands serious consideration. However, the level of disruption and expense and the unlikelihood of any, or any sufficient increase in CAFCASS a strong argument against. Moreover, the issue of independence from the local authority, perceived or actual, is not, in the view of the Council, the central issue.”
What I think that means is that, in all these cases, there is an important balance to be struck—as my hon. Friend the Member for Stafford said—between independence and feeling sufficiently strong and having the authority to be independent, and needing to co-operate with the local authority in the interests of the child. What we are asking IROs is to have not only the force of law behind them—what we are doing today—but their own sense of authority in striking that balance in the best possible way for each child.
We also commissioned a survey of IROs and, of the 70 responses, only three cited concerns about potential conflicts of interest in their role. Even in those cases, the concern was more about which part of the local authority they sat in—which department—rather a fundamental conflict of interest per se.
In implementing the measures, we will monitor progress very closely. If, as we hope, the desired changes in the effectiveness of IROs can be achieved through the new framework in clause 11, it may not be necessary to go further. If they cannot, we include the powers in clause 12 to establish a new national IRO service, entirely independent, if that is necessary.
Mr. Timpson: After the 2004 Act, we saw the introduction and recruitment of regional networks of IROs, monitored by the regional network group, as I understand it. Can the Minister confirm that that is still an ongoing network group and will it be extended as part of this reorganisation of the IRO system?
Beverley Hughes: We have no plans to change that—indeed, as I think the hon. Gentleman is saying, there is a case for making sure that those regional networks are as strong as they need to be. The force of the Bill and the guidance we issue to IROs will give a greater impetus to those networks, so that IROs can work together, talk together and work out how to maximise the potential of the changes in legislation that we are talking about today.
Turning specifically to amendment No. 35, the purpose behind new section 25B(1)(4) of the 1989 Act, inserted by clause 11, is to ensure that, in those local authorities where the independent reviewing officer is not a salaried member of staff, the IRO is not in any way put at a disadvantage in carrying out their functions. We expect those IROs to have the full co-operation of the local authority. We believe that the amendment is unnecessary, because it would make legislative provision requiring an authority to work reasonably with its own employees.
Hon. Members raised the concern that those IROs employed by a local authority might have their arms twisted because of other pressures on the local authority, extraneous to the case. We are clear that employees have a duty only to co-operate with lawful and reasonable instructions from their local authority, so I do not think there is a need to change the law.
I hope that hon. Members will recognise our commitment to finding the right way forward on these important and complex questions, and that what we have in the Bill is a very considerable strengthening of IROs’ independence. Nobody—IROs, local authorities, other agencies—can be in any doubt about the role we want the IROs to play. We are enshrining that in the Bill, and it will supported by statutory guidance, for the first time, on how IROs are to undertake their role in practice, day-to-day, in protecting both the voice of the child and their own independence.
I hope, with those assurances arising from the various probing questions Members have asked, the Committee will feel that we have a good regime in the Bill and that what we need to do is make sure it is put into practice.
Mr. Kidney: I hope you will agree, Mr Pope, that we have had an important and interesting debate and in just 75 minutes, we have covered two very important subjects—the strength and role of the independent reviewing officer and access for children in care to independent advocacy. All hon. Members, and my right hon. Friend the Minister, have made concise contributions and have deployed a strong set of arguments for and against each position we have been discussing. I am grateful to the hon. Member for Mid-Dorset and North Poole for saying that amendment No. 35 is “eminently sensible” and to the hon. Member for East Worthing and Shoreham for saying he agreed with much of what I said in support of that amendment.
11.45 am
If we can move on to the Minister’s response to their points, as the hon. Member for Mid-Dorset and North Poole said, the thrust of amendments Nos. 33 and 36 is the need for independence of advocacy. I am grateful to my right hon. Friend the Minister for taking a lot of time to deal with the matter of advocacy. I think she is right to some extent that existing law would be fine if it operated properly. The hon. Member for East Worthing and Shoreham suggested using the precedent of advocates in mental health services for children in care. I would say that children in care provided the precedent for mental health service advocates, because the entitlement to advocacy for complaints and representations was introduced for children in care before it was ever used for mental health patients.
The role and purpose of advocacy has been developed and refined since the child’s right to an advocate was introduced. We therefore have quite a good model in mental health: there is an entitlement to the service, there is a right to be told about the entitlement, and there is a right to private access to the advocate. That should be the model in every area. I am sure the Minister is correct in saying that, through guidance, we can get to the same position for children in care. I hope that we will all be consulted later on the wording of the guidance to ensure that that is done.
On amendment No. 35, my right hon. Friend made the point that I thought she would make, that an employee of a local authority will have all the rights and access to resources to do their job without the need to specify in legislation that there is a duty on the employer to co-operate with their employee. I think we would all expect an employer to co-operate with an employee who has an important statutory role to fulfil. As she rightly assumed, I am concerned about arm twisting—perhaps not physical arm twisting, but the sort of subtle pressure that I described when introducing the amendment.
My right hon. Friend reminds us, as I said in my speech, that an employer is entitled to expect an employee to obey a lawful and reasonable instruction. She said it would not be reasonable and lawful for the local authority to tell the independent reviewing officer to have regard to something outside the case review, such as the financial situation of the council, when making their decision in their role as independent reviewing officer. I am a little more sanguine than she is in thinking that those pressures will not be there and will not tell in the outcome, provided that we are careful. Again, I ask her to ensure that that point is dealt with when guidance on the strengthened role is produced to protect employees.
Finally, I am glad that the Chairman agreed to group the amendments dealing with independent reviewing officers and advocacy, because I believe that the two issues go together very well. To expect the independent reviewing officer to be absolutely independent, to stand up for children and to deal with the plethora of professionals, as my right hon. Friend described them, but still come to the right solution in representing the child’s views and wishes is expecting too much, whoever provides the role. Even if we end up implementing clause 12 and creating a new body specifically to do the job, I still think that it is flawed because of the intellectual construct of that role.
With the benefit of many years of experience with the ASIST advocacy scheme in Staffordshire, whose work I have seen at first hand more than once, I believe that the advocate’s role is a special and dedicated one that should be separate from anybody who is going to make a decision about the welfare of the child. This is about ensuring that the views of the child are expressed properly at the right time and to the right people.
Mr. Turner: Before the hon. Gentleman sits down, will he deal with the importance of continuing representation of people? It should not seem like, “Bang! Here is one decision. Bang! Here is another decision.”
Mr. Kidney: I assure the hon. Gentleman that I was saving dealing with his contribution to the debate until last, because that is a point that I agree with. I think that we can be relaxed about who becomes the IRO. We are strengthening the law relating to the role of that post, and we are doing fine. If we listen to the representations from the General Social Care Council and always ensure that IROs are registered social workers who have adequate training and accreditation, whether they work for the council, a separate body or are self-employed, we can rely on them to fulfil their role. My point is that that role is not to express the wishes of the child and ensure that someone persists in giving those views at the right time to the right people, which I think ought to be the role of the advocate. That meets the hon. Gentleman’s point. A plethora of professionals may come and go, such as social workers, consultant psychiatrists and head teachers. One of the complaints that young people make is that they can constantly be allocated a new social worker, so a new face appears. Equally, an IRO will have a case load in their day job and the case load for their IRO responsibilities might be for more than one child.
The advocate would be the person by the child’s side, in private and in the place where they live, talking about their wishes and desires and going with them to the meetings. They would speak on the child’s behalf against the sea of faces of professional people, who might have changed since the last time they all got together. The advocate would be the one person the child trusts and knows speaks for them. Having had their voice heard, the decision might not go the way the child had hoped, but they would at least have the satisfaction of knowing that they had had a fair hearing and that their point of view was stated. That is probably one of the greatest benefits of advocacy: what matters is not whether the case succeeds, but that it was made at the right time and to the right people.
That combination of the position of the IRO and the availability of an advocate, if the child wants one, to make those representations at the right time will be the best solution for improving the circumstances of children in care. Having listened to the Minister’s explanation of how she thinks the present law satisfactorily covers my concerns, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
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