House of Commons - Children, Schools and Families

Select Committee on Children, Schools and Families Written Evidence

Memorandum submitted by the Children's Advocacy Consortium

EXECUTIVE SUMMARY

Introduction

1. Voice and the Children's Society, on behalf of the Children's Advocacy Consortium, submit this memorandum specifically on independent advocacy for looked-after children as we do not accept that the Children and Young Persons Bill has reflected the outcome of the consultation process. There has been no clause on the face of the Bill concerning independent advocacy and the Government response to debate at both House of Lords Second Reading and the Committee Stage has not been sympathetic.

2. The Children's Advocacy Consortium, the Alliance for Child-centred Care and other children's organisations[2] have called for an extension of professional independent advocacy in the Children and Young Persons Bill by:

— extending the statutory right to advocacy to the care planning and review process; and

— requiring providers of residential care and fostering services to ensure that children are provided with an independent advocate.

3. We believe that empowering young people to be able to participate in the decisions about their lives and seizing the opportunity that advocacy offers should be a central part of the strategy for improving the outcomes for children in the care system.

What do we mean by professional independent advocacy?

4. In our view the Government confuses the task of informal advocacy (as provided by parents and social workers) and the role of professional advocacy as set out in National Advocacy Standards. The latter defines advocacy as about empowering children and young people to make sure that their rights are respected and their views and wishes heard at all times.

5. It is our view that the expression of the child's views in the decision making process by those who are responsible for the outcome of that process is quite distinct from the representation of the child's wishes and their rights by a professional who is independent of the system. This is particularly important as looked-after children have little recourse to the courts when things go wrong in relation to their care plan except in cases where there are clear breaches of their human rights or can make an application in judicial review.

Why is a strengthened statutory right to independent advocacy needed?

6. Research studies provide evidence that whilst many more children in care are actively involved in reviews and planning meetings some professionals continue to make assumptions that children will not want to or would be unable to participate. Many children continue to be intimidated by the number of adults in meetings, find the language used difficult to understand and were not confident enough or given enough time to get their views across.

7. Looked-after young people themselves continue to tell us that their views are not being listened to and taken into account despite the existing responsibilities of Independent Reviewing Officers to facilitate the child speaking at their review meeting and ensure the child understands what is being discussed. This experience is borne out by research.

The current situation: independent advocacy for complaints and representations

8. Section 119 of the Adoption and Children Act 2002 imposed new duties on local authorities to provide advocacy for looked-after children, children in need and young people leaving care making or intending to make a Children Act 1989 complaint.

9. This new duty has had only limited impact. This is in part because the numbers of looked-after children making complaints remains very low. Many children simply do not understand that they have a right to complain or that they have a right to an advocate to support them though the process. Children and young people do not want to have to resort to a complaints system before they can get the support they need to get their views across; they would rather have support at an earlier stage and thus avoid problems escalating.

10. Furthermore, children in care have expressed concerns about using the complaints system for fear of reprisals; this can be all the more fearful for a disabled child who is dependent upon staff or foster carers for all their daily needs.

11. We believe that better outcomes and potentially long-term cost savings can be achieved if children are represented by independent advocates far earlier in the decision-making process. This not only contributes to fairer and better decision making but also is likely to avoid the need for a complaint subsequently to be made.

Access to existing advocacy services

12. Even where a child does indicate they wish to make a complaint or a representation the current availability of advocacy services is limited, and it is often those with additional needs, who are the most vulnerable who are being denied access.

13. As far back as 1997, Sir William Utting recognised the importance of advocacy as an important safeguarding measure for children living away from home. Visiting advocacy services to children's homes and fostering agencies enable the child to speak to a trusted professional advocate about safeguarding and other issues of concern to them. We consider that it would be a significant safeguard for children placed away from home if all agencies providing care were required to ensure that their children had access to independent advocacy.

14. Work carried out by the Children's Advocacy Consortium estimates that about 15% of the care population would take up the support of professional independent advocacy with an estimated cost of £3 million (excluding on-costs).

15. We are supporting an amendment at Report Stage in the House of Lords that the local authority ensures that there are sufficient independent advocacy services for those children for whom they are responsible, the later including those children who are placed outside the authority including an audit of such services. This amendment seeks to address the expectation by Lord Adonis that children have access to advocacy beyond the complaints procedure.

Evidence of Government's existing commitment to independent advocacy

16. Recent legislative changes in other arenas such as the Independent Mental Health Advocate (2007 Mental Health Act) and Independent Mental Capacity Advocate for over 16s (2005 Mental Incapacity Act) have extended the right to independent advocacy for children and young people. This demonstrates the Government's recognition of the value of advocacy for groups who are at risk of having significant decisions made about their lives without their views being independently represented.

The proposals in the Bill are not sufficient to ensure that the wishes and feelings of children are represented independently of those who make decisions about their best interests

17. We welcome the extension of the IRO role and hope that the changes (some of which are already in existing regulations) will lead to greater scrutiny of the child's care plan in the interests of the child and in compliance with their human rights. However, this does not replace the need for an extension of professional independent advocacy as the purpose of the IRO is fundamentally different from that of independent advocacy (see para 5).

18. IROs have significant responsibilities in relation to chairing review meetings which means that they do not have the capacity to give young people the dedicated support necessary to ensure that their views can be clearly represented.

19. The remit of the IRO is to act in the best interests of the child and at times they may conclude that what the child wants is contrary to what is in their best interests.

20. We have supported an amendment for debate at House of Lords Report Stage that the IRO must inform the child about independent advocacy, and if a need is identified, to require the local authority to provide it for the child.

FULL MEMORANDUM

1. INTRODUCTION

1.1 Voice is a national charity committed to empowering children and young people in public care and campaigning for change to improve their lives. Amongst our other services, Voice provides community advocacy services on request to children and young people who are in need, looked-after and who have left care and employs specialist advocates in asylum seeking children, mental health, disability and care leavers. Voice also provides visiting advocacy services to children's homes, the vast majority of secure children's homes in England and five adolescent units in the North of England. At present we also provide visiting advocacy to young people sentenced to custody in three secure training centres and ten young offender institutions.

1.2 The Children's' Society is a national children's charity concerned with the welfare of all children and young people, but especially those who are at risk of social exclusion and discrimination. We have a particular interest in disabled children, looked-after children, children in trouble with the law, young refugees, and children and young people at risk on the streets. Our organisation works across England and has a well-developed practice base working directly with children and young people in a range of social care, community based and specialist projects including the provision of advocacy and independent visiting services.

1.3 Voice and the Children's Society, on behalf of the Children's Advocacy Consortium, submit this memorandum specifically on independent advocacy for looked-after children as we believe that the Children and Young Person's Bill has not reflected the outcome of the consultation process. There has been no clause on the face of the Bill concerning independent advocacy and the Government response to debate at both Second Reading and the Committee Stage in the House of Lords has not been sympathetic.

1.4 The Children's Advocacy Consortium welcomes many of the proposals in the Government's White Paper, Care Matters: Time for Change as a major step in securing child centred care for looked-after children and improving their outcomes both during their childhood and in later life.

1.5 The Children's Advocacy Consortium, the Alliance for Child-centred Care and other children's organisations[3] have called for an extension of professional independent advocacy in the Children and Young Persons Bill in the following ways:

— extending the statutory right to advocacy to the care planning and review process; and

— requiring providers of residential care and fostering services to ensure that children are provided with an independent advocate.

1.6 Empowering young people to be able to participate in the decisions about their lives and seizing the opportunity that advocacy offers should be a central part of the strategy for improving the outcomes for children in the care system.

1.7 Contents of submission:

— Brief history of the consultation process.

— What do we mean by professional independent advocacy?

— Why is a strengthened right to advocacy needed?

— The current situation: complaints and representations.

— Access to advocacy.

— Evidence of Government's existing commitment to independent advocacy.

— The proposals in the Bill are not sufficient to ensure that the wishes and feelings of children are represented independently of those who make decisions about their best interests.

— The way forward.

2. BRIEF HISTORY OF CONSULTATION PROCESS

2.1 The Green Paper proposed that all looked-after children should have three key individuals in their lives: the Social Worker, the Carer (whether in residential or foster care) and an Independent Advocate. It went on to suggest that the independent visitor role be revitalised and renamed as Independent Advocate in order to introduce advocacy as a key element of this role. While supporting the expansion of independent visitor scheme we argued strongly for an understanding of the crucial difference between the two roles, most significantly between the volunteer nature of a long term befriending role in the Independent Visitor and the task focused professional role of the independent advocate charged with advising and representing the child in accordance with the guidance in National Advocacy Standards[4] and Get it Sorted.[5]

2.2 The Care Matters: Consultations Response document[6] acknowledged there was a general consensus that the proposal to change the name of independent visitor to independent advocate was misguided and would confuse and dilute the two roles.[7] It also highlighted young peoples' feelings that they should be entitled to an advocate not only during complaints processes but at other times throughout their time in care. Access to a champion or advocate was one of the things that children and young people felt should be included as part of the local authority pledge.[8]

2.3 There was no reference to professional independent advocacy in the White Paper except to restate the existing legal right to advocacy in making complaints. One small reference to advocacy was made in relation to testing the outcomes of a pilot project, Right 2B Cared4 in which 16 and 17-year-olds moving on to independence will be offered support by an independent person to ensure they have the opportunity to express their wishes and feelings and fully understand the implications of any proposals. The pilots will explore whether or not young people express a preference in choosing independent advocates and how far this contributes to improved outcomes and the quality of young people's engagement in their care.

3. WHAT DO WE MEAN BY PROFESSIONAL INDEPENDENT ADVOCACY?

3.1 Parents and others with responsibility for children advocate for children in helping them articulate their wishes and feelings: it is a part of what they do. Provisions of the 1989 Children Act[9] require the local authority to ascertain and take into account the wishes and feelings of the child in decision making. This is also reflected in guidance for other professionals.

3.2 There is a clear distinction between this general role and the specific role of professional independent advocacy. The National Standards for Children's Advocacy Services states that:

3.3 The National Standards further state that "advocacy is about representing the views, wishes and feelings of the children and young people to decision-makers and helping them navigate the system". In our view the Government confuses the task of informal advocacy and the role of professional advocacy as set out in National Standards. It is our view that the expression of the child's views in the decision making process by those who are responsible for the outcome of that process is quite distinct from the representation of the child's views and their rights by a professional advocate who is independent of the system.

3.4 This is particularly important as looked-after children have little recourse to the courts when things go wrong in relation to their care plan except in cases where there are clear breaches of their human rights or the decision making process has been faulty so that the courts exercise their discretion in judicial review.

3.5 There is a strong argument to say that under human rights law natural justice requires the child to be independently represented in decision making about their private and family life. In discussing the role of independent advocacy, Mr Justice Munby[11] has said:

"Article 8 imposes procedural safeguards which impose on administrative decision-makers whose decisions impinge on private or family life burdens significantly greater than I suspect many of them really appreciate. And the burden may extend in some circumstances not merely to permit representation but even to ensure that parents—and particularly children—are properly represented when decisions fundamental to the children's welfare are being taken."

In other words, using the analogy of court proceedings, those who are making a judgment about the child's welfare cannot also argue their case.

4. WHY IS A STRENGTHENED STATUTORY RIGHT TO INDEPENDENT ADVOCACY NEEDED?

4.1 Voice and The Children's Society are very concerned that looked-after children and young people continue not to be heard in decisions being made about their care, their protection and their lives despite successive legislation and guidance.[12]

4.2 Research studies provide evidence that in practice authorities are failing to meet their duties in this regard.[13] Whilst many more children in care are actively involved in reviews and planning meetings some professionals continue to make assumptions that children will not want to or would be unable to participate in reviews and planning meetings. A 2006 CSCI report on children's views found many continue to be intimidated by the number of adults in meetings, find the language used difficult to understand and were not confident enough or given enough time to get their views across.[14]

4.3 Looked-after young people continue to tell us that their views are not being listened to and taken into account despite the existing responsibilities of Independent Reviewing Officers to facilitate the child speaking at their review meeting and ensure the child understands what is being discussed. Exclusion from involvement in decision-making was a dominant theme in the experience of looked-after young people in the study by Boylan and Braye.[15] They found children were being talked about rather than being talked to and frequently had their views ignored:

"You ain't got a say in what's going off-everybody's talking about you and not to you.

"(It's) a place where your social worker and them bosses get to talk about you to see where you're going to end up in the future."

4.4 Chase et al [2006][16] noted the following view from a young person using the Voice advocacy service:

"Before I had an advocate social services and I were talking at cross purposes and I wasn't getting proper help... the advocate improved the communication between all of us... she gave me some power back... all the others, teachers, social workers etc were talking amongst themselves but no one was talking to me, they were not involving me or explaining anything to me"

5. THE CURRENT SITUATION: INDEPENDENT ADVOCACY FOR COMPLAINTS AND REPRESENTATIONS

5.1 Section 119 of the Adoption and Children Act 2002 (inserting section 26A into the 1989 Children Act) imposed new duties on local authorities to provide advocacy for looked-after children, children in need and young people leaving care making or intending to make a complaint under section 24D or section 26 of the Children Act 1989. The associated Get it Sorted guidance seeks to provide all children's services staff with an understanding of these duties.[17]

5.2 This existing statutory right to advocacy in relation to complaints has had only limited impact. This is in part because the numbers of looked-after children making complaints remains very low.[18] Many children simply do not understand that they have a right to complain and do not know they have a right to an advocate to support them though the process. Children and young people do not want to have to resort to a complaints system before they can get the support they need to get their views across; they would rather have support at an earlier stage and thus avoid problems escalating.

5.3 Whilst the Get it Sorted guidance suggests the role of advocacy should not be limited to assisting children when they want to make a complaint, in reality some local authorities are only triggering advocacy services once a complaint has been registered.

5.4 Furthermore children in care have expressed concerns about using the complaints system for fear of reprisals; this can be all the more fearful for a disabled child who is dependent upon staff or foster carers for all their daily needs. Oliver et al confirm that the value of formal complaints procedures for children appears to be limited and complaints procedures are less accessible to disabled children.[19]

5.5 We believe that better outcomes and potentially long-term cost savings can be achieved if children are represented by independent advocates far earlier in the decision-making process. This not only contributes to fairer and better decision making but also is likely to avoid the need for a complaint subsequently to be made.

6. ACCESS TO EXISTING ADVOCACY SERVICES

6.1 Even where a child does indicate they wish to make a complaint or a representation the current availability of advocacy services is limited, and it is often those with additional needs, who are the most vulnerable who are being denied access. A survey of advocacy services across England carried out by The Children's Society between April and December 2006 found alarmingly that a quarter of advocacy providers surveyed reported that they had not been able to respond to a referral from a disabled child at all. Furthermore the most vulnerable children were even less likely to be able to access a service, for example over two fifths of those surveyed said that they could not provide advocacy for children who did not communicate verbally and over a third could not provide advocacy for autistic children and young people.[20]

6.2 Looked-after children are placed predominantly in foster care and with the majority of others in residential care. As far back as 1997, Sir William Utting recognised the importance of advocacy as an important safeguarding measure for children living away from home.[21] Members of the Children's Advocacy Consortium have a decade of experience in providing such services. Visiting advocacy services to children's homes and fostering agencies enable the child to speak to a trusted professional advocate about safeguarding and other issues of concern to them. If the Government wish to see a `step-change' in the care system this would ensure that children in care had support when they needed it to raise concerns or to challenge decisions about their care.

6.3 We consider that it would be a significant safeguard for children placed away from home if all agencies providing care were required to ensure that their children had access to independent advocacy.

6.4 Work carried out by the Children's Advocacy Consortium estimates that about 15% of the care population would take up the support of professional independent advocacy with an estimated cost of £3 million (excluding on-costs). Further costs would be incurred for developing visiting advocacy services.

6.5 We are supporting an amendment at Report Stage in the House of Lords that the local authority ensures that there are sufficient independent advocacy services for those children for whom they are responsible, the later including those children who are placed outside the authority, and that the availability of such services should be regularly audited. This amendment seeks to address the expectation by Lord Adonis that children have access to advocacy beyond the complaints procedure.

7. EVIDENCE OF GOVERNMENT'S EXISTING COMMITMENT TO INDEPENDENT ADVOCACY

7.1 Recent legislative changes in other arenas have extended the right to independent advocacy for children and young people and demonstrate the Government's recognition of the value of advocacy for groups who are at risk of having significant decisions made about their lives without their views being independently represented.

— The Mental Health Act 2007 places a new duty on the appropriate national authority to make arrangements for access to independent mental health advocates for a child who is liable to compulsory treatment, or for whom Electro-Convulsive Therapy (ECT) is being contemplated.

— The Mental Capacity Act 2005 established the Independent Mental Capacity Advocacy Service. This is the new statutory advocacy service that provides advocacy for those 16 years and over who lack capacity where important decisions are being made about serious medical treatment changes in placement; arranging care reviews or adult protection cases.

7.2 The Government clearly accepts that independent advocacy is a valuable service that gives people who might otherwise be denied it a voice in decision making about their lives. We believe that it must be extended to all looked children who face significant decisions as a matter of urgency.

8. THE PROPOSALS IN THE BILL ARE NOT SUFFICIENT TO ENSURE THAT THE WISHES AND FEELINGS OF CHILDREN ARE REPRESENTED INDEPENDENTLY OF THOSE WHO MAKE DECISIONS ABOUT THEIR BEST INTERESTS

8.1 In debate in the House of Lords Committee Stage, Lord Adonis, raised the importance of improving professional practice in order to take into account and express the views of the child. While we fully support this, it is our belief that this comment misunderstands the respective roles of social worker, independent reviewing officer (IRO) and independent advocate (see para 3.3).

8.1 In debate,[22] Lord Adonis said of the IRO:

"The Bill extends the responsibilities of IROs to monitor the performance of the local authority's functions in relation to a child's case, ensuring that they effectively oversee the care planning process so that it is fair and reasonable and gives proper weight to the child's wishes and feelings. The IRO will support children's active engagement with the care planning process, ensuring that there is greater scrutiny of the care plan for each child in care and making sure that children and young people are informed about their rights if they consider that they have been treated unfairly".

8.2 We welcome the extension of the IRO role in the Bill [clauses 11 and 12] and hope that the changes (some of which are already in regulations) will lead to greater scrutiny of the child's care plan in the interests of the child and in compliance with their human rights. However, this does not replace the need for the expansion of professional independent advocacy. As we have stated in paragraph 3.3 the purpose of independent advocacy is fundamentally different from that of the IRO.

8.3 The IRO cannot practically be expected to enable the necessary participation of the child in the review process. Despite the existing requirement, in regulations,[23] for the IRO to ensure that the voice of the child is conveyed to the review, children still tell us that they do not feel that they are listened to.

8.4 In response to this situation the Government has stated its intention to introduce a stronger requirement on the IRO to meet with the child before the meeting.[24] This is welcome but will not resolve the fundamental conflict in role that IROs have significant responsibilities in relation to chairing review meetings which means that they do not have the capacity to give young people the dedicated support necessary to ensure that they views can be clearly represented. Independent advocates are also able to ask challenging questions of the review participants in a way that the IRO cannot from the position of chair.

8.5 The remit of the IRO is to act in the best interests of the child and at times they may conclude that what the child wants is contrary to what is in their best interests. For this reason it is essential that in all planning and review meetings children are entitled to have the right to have the support of a professional advocate independent of the care authority who will listen to their views and represent them, irrespective of what they themselves think is in the best interests of the child. Oliver et al found that children appreciate being genuinely listened to even if their wishes are not fully met.[25] Children themselves tend to view the IRO as "officials" who are working on behalf of the system not for their own individual benefit.

9. THE WAY FORWARD

9.1 We have supported an amendment for debate at House of Lords Report Stage that the IRO must inform the child about independent advocacy and, if a need is identified, to require the local authority to provide it for the child.

9.2 In current guidance the IRO is required to inform the child of their right to make a complaint and in such circumstances the right to an advocate.[26] In our view this is too late and puts the onus on the child to take action after a decision is made about which they are unhappy rather than at the time when they may be able to influence the direction of that decision.

9.3 We believe that the IRO should inform the child about independent advocacy, what it means, how it can help, and how it is different from the social work and IRO role before each review. Following discussion with the child and where, for example, the child is clear that they want an advocate or the IRO feels that the child should have an advocate as their views do not correspond with the care plan, the local authority should be required to provide advocacy services to that child.

9.4 Not all children will either need or want advocacy, but they must be given the opportunity to make an informed decision. At the same time, this would ensure human rights compliance.

9.5 We are also supporting an amendment at Report Stage in the House of Lords that the local authority ensures that there are sufficient independent advocacy services for those children for whom they are responsible, the later including those children who are placed outside the authority, and that the availability of such services should be regularly audited. This amendment seeks to address the expectation by Lord Adonis that children have access to advocacy beyond the complaints procedure.

February 2008

2 See joint statement at: http://www.childrenssociety.org.uk/resources/documents/Policy/Children_and_Young Persons_Bill_joint_statement_on_independent_advocacy_4876_full.pdf Back

3 Ibid. Back

4 DoH (2002) National Standards for the Provision of Children's Advocacy Services. Back

5 DfES (2004) Get it Sorted: Providing Effective Advocacy Services for Children and Young People making a Complaint under the Children Act 1989. Back

6 DfES (2007), para 3.29. Back

7 DfES (2007) Care Matters: Consultations Responses, para 3.29. Back

8 Ibid, para 3.30. Back

9 Sections 22(4) and (5). Back

10 Para 1, National Standards for the Provision of Children's Advocacy Services, DoH, 2002. Back

11 Family Law (2004) and see www.voiceyp.org Back

12 Section 22[4] [a] and [5] of The Children Act 1989. Back