Memorandum submitted by Dr Roger Morgan
OBE, Children's Rights Director for England
This submission is made in my capacity as Children's
Rights Director, representing the views ascertained from children
and young people, and not on behalf of Ofsted. It does not necessarily
represent the policy or views of Ofsted.
1. The Children's Rights Director for England
is a statutory post, previously hosted by the National Care Standards
Commission then the Commission for Social Care Inspection, and
since 1 April based in the new Ofsted. The post is required under
section 120 of the Education and Inspections Act 2006, with functions
determined by the Office for Standards in Education, Children's
Services and Skills (Children's Rights Director) Regulations 2007.
2. The main statutory function of the Children's
Rights Director is to ascertain the views of children (and where
appropriate their parents) about services for children living
away from home, receiving children's social care services, or
leaving care. Consultation methods include randomly invited discussion
groups in child-friendly venues and in children's establishments
and services, national children's conferences, web surveys, written
"question card" surveys, and a mobile phone texting
3. Consultation topics are determined by
the Children's Rights Director, from issues raised by children
themselves, or raised through the inspection work of the current
host inspectorate, and (increasingly) at the invitation of DCSF
officials and Ministers to provide an independent children's voices
input to policy developments. A recent, and most relevant, example
has been consultation with children to feed into, and comment
upon, the Care Matters Green Paper.
4. Consultation work has resulted in a series
of "Children's Views" reports, written to be readable
by both children and adults. 27 Children's Views reports were
published during the three years the Office of the Children's
Rights Director was hosted by the Commission for Social Care Inspection.
Reports are circulated to the children involved, to councils with
children's social care responsibilities, to Ministers and opposition
spokespersons, to DCSF officials, to the UK Children's Commissioners,
and to a list of children's organisations and interested individuals
5. The Children's Rights Director also has
the function of giving statutory advice on children's rights and
welfare. Within his remit, he acts as the statutory advisor to
Her Majesty's Chief Inspector in relation to Ofsted carrying out
its new statutory function to have particular regard to safeguarding
and promoting the rights and welfare of children.
6. The purpose of this submission is to
assess the extent to which the Children and Young Persons Bill,
within the context of the White Paper, reflects the views and
concerns of children and young people obtained through Children's
Rights Director consultations with children and young people.
The submission also refers to significant children's rights and
welfare issues raised with the Children's Rights Director by individual
children, and possible responses to those issues.
7. There is much within the provisions of
the Children and Young Persons Bill that responds directly to
the views and concerns of children in public care. I will indicate
where some of the measures could be strengthened further in the
light of concerns raised by children, and identify areas where
children's concerns suggest further measures.
8. Throughout, it is essential to children
that their individual experience is what is intended by the legislation,
and that the authorities and staff responsible for delivery of
the relevant services to children are able to, and do, deliver
intended improvements. Children have consistently told us that
their experience of existing services is variable and not consistently
what was intended by legislation (for example, in the field of
9. Children have consistently expressed
their wish for increased access to their social workers, to be
able to secure visits from their social workers when they need
them, and for consistency rather than frequent turnover of social
workers. The value for children of Section 1 of the Bill
is therefore dependent on whether such arrangements would meet
these aspirations in practice.
10. Children have strongly supported the
following provisions, now in the Bill:
assessing in all cases whether placement
with family and friends is practicable and consistent with the
child's welfare (Section 7);
local authorities providing accommodation
in their own areas; accommodating children near to home; and,
accommodating siblings together, provided that these are consistent
with the child's welfare (Section 8). Children have stressed
that these are appropriate objectives, but must in each case,
as provided in the Bill, be subject to consistency with individual
welfare at the time for each child concerned (eg each sibling
of a sibling pair or group);
provision of accommodation near to
a looked-after child's school where this is consistent with the
child's welfare (Section 9). However, this section is not
as worded fully consistent with children's views as expressed
to the Children's Rights Director. When asked to comment on the
last time children had to change school because of a living placement
change, approximately half the children stated that the new school
was either educationally or socially better for them. This argues
for a further exemption from the preservation of attendance at
the same school or schools; where the authority considers, having
where practicable taken the child's views into account, that a
change of school is likely to benefit the child educationally,
socially or with regard to welfare;
additional safeguard of a required
statutory child care review which must apply before a child can
be placed outside the area (Section 10). The most frequent
welfare issue raised by individual children with the Children's
Rights Director is however of children already placed outside
the area and told that they must return from that placement for
policy or financial reasons rather than for their own best interests.
It would respond to these children's concerns and experience if
an additional provision were made in this section requiring that
return from a placement made out of area should also be subject
to a statutory child care review with the purpose of ensuring
that the return is in the best interests of the child concerned,
taking his or her views into account. Such a provision may of
course also act as a further caution to making out of area placements;
requirements for social workers to
visit looked-after children (Section 13);
entitlements for formerly looked-after
children going on to university (Section 18); and
providing further assistance and
advice to formerly looked-after young people remaining in education
or training (Section 19).
11. One issue raised by children themselves
is that of the action they can take if their local authority is,
in their view, failing to make an appropriate care plan, failing
to keep to their agreed care plan, or failing to provide appropriately
for them or to safeguard and promote their rights or welfare.
12. The Independent Reviewing Officer provision,
and the facility for the Reviewing Officer to refer matters to
CAFCASS, has long existed, but we have found that this is very
little known amongst children, and it is hardly ever used, even
though children often raise with us issues where they consider
their authority is not in their view acting appropriately. Children
also make little use of complaints procedures which take complaints
back to their local authority. They tell us that they find such
procedures inaccessible and unlikely to produce a timely rectification
where their concerns relate to the actions of the authority considering
13. The provisions of Section 11 do
not specifically resolve the lack of use of Independent Reviewing
Officer and CAFCASS powers to intervene where children consider
their rights or welfare are not being safeguarded and promoted.
Additionally, Section 11(25B)(3) does not address what
should happen for the child where the Independent Reviewing Officer
declines to refer a case to CAFCASS.
14. From the children's perspective, it
is essential that the provision in the Bill to enhance and further
specify the role of the Independent Reviewing Officer, and the
independence of that officer, does in practice result in children
actually raising individual concerns about the way their authority
is safeguarding and promoting their welfare with that officer,
and that such referrals by children result in a satisfactory outcome
for the children concerned. If they do not, this is one area of
the Bill's intentions that may need to be revisited in the future.
15. Two key points arise from children's
concern that they should be better able to raise (and have resolved)
concerns about their own rights and welfare. The first is that
the content of the Regulations provided for under Section 11 will
need to reflect the children's concerns about this provision,
and to be effective in facilitating children's access to redress
and the delivery of redress.
16. The second, arising from Children's
Rights Director work on individual children's issues, is that
looked-after children do not currently have access to all the
court orders under Section 8 of the Children Act 1989. It is opportune,
within the passage of this Bill, to consider giving access to
all Section 8 orders to looked-after children, to allow them a
further safeguard, through the courts, where they consider the
actions of an authority to be contrary to their rights or welfare
(for example, in relation to removal from a particular placement).
Such provision, alongside an enhanced Independent Reviewing Officer
role and existing complaints procedures, would significantly strengthen
the opportunity to seek redress that children have sought where
they consider their authority is not acting in their best interests.
Importantly, it would also be external to the authority concerned,
which is significant since children have discussed with us the
issue of independence of any system for redress.
17. Under Section 14 (8), it is important
to distinguish a child's objections to a particular Independent
Visitor, as against objecting to having an Independent Visitor
at all. The current wording of the section is not clear that if
a child objects to a particular visitor, but still wishes to have
such a visitor, there is a duty to appoint a different visitor
acceptable to the child wherever practicable. Children have strongly
raised with us that it is important that persons appointed to
work with them as individuals are people they find acceptable
and can "get on with". It might also be worth considering
the need to specify that the person appointed to visit the child,
under this part of the Bill, cannot be the same person appointed
to visit the child under Section 13.
18. Young people have raised with us their
concern at inconsistencies in provision of leaving care assistance
to unaccompanied asylum seeking children. It would be helpful
to clarify such assistance in Section 20.
19. It is particularly worth noting that
the Government White Paper, Care Matters: Time For Change took
our submitted children's views into account in:
opting to stress the need for proper
individual decision-making, with assessment of reasons for different
levels of reception into care between local authorities, rather
than setting specific national targets for numbers of children
stressing the issue of "normalising"
permissions for looked-after children to enjoy overnight stays
enabling children to remain in placement
retaining the distinctive role of
independent advocates, as opposed to incorporating this into the
role of the independent visitor;
providing greater say and support
to care leavers;
encouraging looked-after children
in education, and ensuring help for those going on to university;
emphasising the need for social workers
to visit children looked-after, and other vulnerable groups of
children living away from home, and being available at times when
children need to contact them.
20. The Government proposals most supported
by children in our consultations on the Green and White Papers
being able to contact a social worker
24 hours a day, 7 days a week;
having a choice of when to leave
care, up to age 18;
social workers being required to
check whether relatives can care for a child instead of receiving
the child into care;
having a Children's Council in each
having social workers spend more
time with children.
21. Conversely, the one proposal that produced
strong objections from many children was to set targets for having
fewer children in care. Whilst some thought this would help keep
more children with their families, others expressed the strongest
worries that: "Some children could be forced to stay at home
when really care is best for them . . ." and " . . .
the children you don't take into care could be in danger".
22. They said the right decision should
be made for each child, and should not be influenced by how the
council was doing on meeting its targets. It is welcomed that
this issue is addressed in line with these children's concerns
in the White Paper.
23. On the specific areas the Select Committee
Inquiry has requested views, children and young people have in
summary expressed the following views to the Children's Rights
24. I reported in "Care Matters":
Children's Views on the Government Green Paper [February 2007]
(156 children and young people) that a significant feature
of corporate parenting, for children and young people, was the
requirement for councils to make "pledges".
25. The top ten promises children want their
councils to make (in order of preference) were: (1) "a good
home"; (2) "more help for children and young people";
(3) "more money"; (4) "for councils to listen to
children and act more on what children say"; (5) "better
help with education"; (6) "to keep children safe";
(7) "more activities to do"; (8) "to recognise
that everyone's needs are different"; (9) "to keep to
promises that they make"; and, (10) "to have an effective
26. Overall, children are concerned that
"corporate parents" should act towards them in as similar
a way as possible to what would be expected of a "good parent"
in a family. While the Bill understandably speaks of corporate
parenting structures and processes, the principle of acting proactively
as closely as possible as a good parent would in a family is one
that could usefully be incorporated in the general statutory duties
of corporate parents.
27. An additional issue raised by many in
care and by care leavers has been that of prejudice against those
with a history in care. It would greatly promote opportunities
and attainment for looked-after children if it were made unlawful
for anyone to discriminate against a child or adult on the grounds
of their present or past care status.
Family and Parenting Support
28. I reported in About Social Workers:
A Children's Views Report [July 2006] (593 children and
young people) that just under half (46%) told us that they
thought that their parents did get the help they need to keep
children safe. One group said how important it is that professionals
should always remember that parents want to keep their children,
and should get help to do thisbut not if the child is really
unsafe staying with them. One quote summed this up: "Children
should remain with their families if there are just difficulties,
but if they are in danger then they should be taken away".
29. The emphasis in the Bill on children
being placed with relatives where feasible and in line with their
welfare children with their families, and the emphasis in the
White Paper on family support, are consistent with these views.
It is also consistent with children's views that any reductions
in the care population are better achieved through the encouragement
of positive interventions and support, as opposed to setting down
artificial targets for councils to try to meet.
30. I reported in Care Matters: Children's
Views on the Government Green Paper [February 2007] (156
children and young people) that children said they wanted
more choice of placement and fewer changes; more say in their
care; more individual support when first entering care; more information;
and not to be separated from brothers and sisters.
31. Children wanted always to know what
was in their care plans; to have more say about their plans; and,
to have explanations of what their plans actually meant in practice.
I reported in Placements, Decisions and Reviews: A Children's
Views Report [September 2006] (86 children and young people)
that some children commented that "huge changes to their
lives happened suddenly without much warning or preparation".
"When I first went into foster care, I came home one time
and was told I was going . . ."
32. The Bill's provisions respond to these
children's aspirations to: (i) give looked-after children a greater
say in decisions about their care; (ii) make more accommodation
available in the local area; (iii) provide accommodation close
to where children are attending school, and (iv) achieve greater
stability in placements.
33. I reported in About Education: A
Children's Views Report [March 2007] (77 children and young
people) that children welcome the emphasis on more support
with personal and educational problems. In addition, they would
like to see encouragement to providing more school trips, better
school meals, better behaviour in schools and teachers who do
not make an issue of a child being in care. Nine out of ten children
had someone they could turn to for help at school. Nearly two-thirds
said that they got help from their carers with schoolwork, and
foster carers were slightly more likely than children's homes
staff to attend parent's evenings.
34. Children in care, but out of school,
were usually either waiting for a school place or had been excluded.
Many of these children spoke of missing their friends, but were
also aware that they were missing out on their education. Their
individual accounts revealed how different schools have very different
levels of tolerance; and children in one part of the country could
find themselves excluded for reasons that would have lead to a
very different outcome in another school. Over 70% of children
had changed school on coming into care and a third as a consequence
of subsequent placements.
35. Looked-after children tell us that they
are particularly susceptible to missing out on their schooling.
In part, this can be down to their behaviour or even assumptions
being made about their behaviour because they are in care. It
can also be attributable to frequency of changes of placement
resulting in them either having to find a new school or one that
will put up with the constant disruptions in the child's life.
Children are clear however that the issue is more complex than
one of simply aiming to avoid each change of school placement;
children have told us both that frequent change is disruptive
to education, but that many individual changes can nevertheless
be beneficial educationally, socially or in terms of welfare.
The Bill builds on the White Paper's strong emphasis on providing
children in care with greater stability in their lives, and recognises
this as the key to any future educational attainment, but it is
important that implementation does not create obstacles to particular
changes in living or school placement where these are assessed
as likely to benefit the child.
36. Given the concerns of children who have
had disrupted education through being in care, consideration could
valuably be given to establishing a right to compensatory educational
provision for children looked-after or formerly looked-after,
where educationally appropriate and consistent with the child's
or young person's wishes.
Health and Well-Being
37. I reported in Looked-After in England:
How children living away from home rate England's care [March
2007] (303 children and young people) that children ranked
6th and 7th respectively amongst a list of children's rights that:
"Children should be able to see a doctor or dentist whenever
they need to" and that; "Children should be able to
have healthy food and drink".
38. Children also strongly endorsed the
White Paper proposals to provide more choice and opportunity to
take part in activities. Availability of a range and choice of
accessible activities for children and young people is also consistently
put forward by children themselves as the major means of countering
development of antisocial behaviour. It would be consistent with
these views of children and young people for the Bill and its
accompanying Regulations and guidance to emphasise such provision
Transition to Adulthood
39. I reported in Young People's Views
on Leaving Care: What young people in, and formerly in, residential
and foster care think about leaving care [February 2006] (208
young people) that young people spoke of having to wait months
or longer, in local bed and breakfast accommodation, before the
promised flat became available. A number of young people raised
concerns about whether accommodation arrangements for care leavers
are always sufficient to keep them safe from harm. Many did not
feel safe or secure. Other young people expressed concern at what
they described as being forced to share residence with adults
and other young people who they said they would never have been
allowed to mix with whilst in care. Many young people complained
that they had been given flats that are unclean and situated in
what they saw as bad areas; "It is important where you get
your flata safe area is needed".
40. Some councils, in how they were using
bed and breakfast or hostel accommodation, appeared to the care
leavers themselves to show insufficient regard for the future
welfare and safety of some care leavers; "The places they
put you are not any goodthere are no positive role models.
You are around people who have no jobs and sit around all day".
One young person described how she was now; "Living in a
hostel with fellas and drug addicts" whilst a group of three
young women said how, when they left care, they had been put in
a local hostel that "Was well known for its prostitution".
41. Clearly, young people in what they have
reported to us, do not generally feel at present that corporate
parents are providing for their care leavers the levels of security
and support that would be expected of a good parent of a family.
Again, the experience of young people as described to us is not
consistent with the intentions of existing legislation, and there
is thus a need for attention to deliverability and consistency
of what is intended.
42. Nearly half of children and young people
we consulted for my report Care Matters: Children's Views on
the Government Green Paper [February 2007] (156 children
and young people), thought that it would be a "brilliant
idea" for children in care who go to university to get more
Role of Practitioner
43. I reported in Children on Care Standards:
Children's Views on National Minimum Standards for Children's
Social Care [December 2007] (433 children and young people)
that children and young people emphasised three important
workforce issues for them. First, people working with them had
to be the right people, properly recruited and checked. Second,
where appropriate, children and young people should be involved
in choosing staff and carers. And, third, stability should be
promoted as a key outcome for children and young people to achieve
their potential. Consequently, changes of staff should be kept
to a minimum. To these, children have added in other consultations
that practitioners working with them should be competent in a
set of key areas, including handling children's crises, de-escalating
situations that might otherwise lead to violence or the need for
physical restraint, the proper use of non-painful and non-injurious
restraint where this is necessary, and countering bullying. Staff
turnover and training are clearly key concerns to be addressed.
44. As there are many provisions within
the Bill for making subsequent Regulations, it may be of assistance
to the Select Committee to know that as Children's Rights Director,
I am planning, in consultation with DCSF, to carry out specific
consultations with children later in 2008 to provide children's
views specifically on the areas to be included in Regulations.