Examination of Witness (Questions 40-59)|
20 FEBRUARY 2008
Q40 Annette Brooke: Obviously, a
number of organisations are trying to raise the profile of more
formal advocacy. Is that being picked up in the Bill at allin
particular, for severely disabled children who are looked after?
It seems to me that there is a case for advocacy for such children.
Kevin Brennan: As I said earlier
in relation to the independent reviewing officer, we are creating
a new duty for them to monitor the case as a whole. We are creating
a new duty for them to ensure that the child's voice is heard
in the process. We are also issuing new guidance about referrals
to legal advice where that is appropriate.
Q41 Annette Brooke: The independent
reviewing officer has a duty to ensure that the child's voice
is heard. If the child has difficulty expressing themselves or
is very disabled, will that duty trigger them to call in advocacy
at some point?
Kevin Brennan: In a case like
that, it seems to me that it would. I am unable to judge an individual
case, but if a young person is unable to effectively express themselves
without professional advocacy or assistance of some sort, it would
quite clearly be good practice for an advocate to be brought in.
There are many disabled children in care. I do not think that
that point could be expressed within the Bill; but in guidance,
it will be clear that the thrust of the reform that we are introducing
is that, if a child's voice cannot be heard because of some disability,
there should be a process by which it can be.
Annette Brooke: Not necessarily physical
disabilityit may be a mental disability, where the child
has been damaged in some way that they cannot express.
Kevin Brennan: Indeed.
Q42 Annette Brooke: If I could just
move on, I am interested in the whole idea of building up good
relationships with an adult. In some ways, there are a lot of
adults floating around now in the Bill: personal advisers, the
designated teacher, the social worker with the £500, obviously
the foster carerof great importanceand the visitors
as well. I wonder how you see this for the child? The child needs
to form a core relationship with someone out of this. Should there
not be a right for the child to choose which is going to be the
Kevin Brennan: The core relationship
for most children and young people in care will be with their
Q43 Annette Brooke: So why does the
social worker have the £500why not the foster carer?
Kevin Brennan: The social worker
does not have the £500 in their pocket as such. In fact,
I can announce to the Committee today that we are launching a
consultation on exactly how that £500 should be administered.
That consultation will be going out to local authorities and is
being issued today. It will include the possibility, provided
that the child or the children in local authority care are consulted,
to pool that money if they wish. Sometimes, it might be appropriate
to do that. As I said, that consultation is being issued today.
Yes, a key relationship for most young people
in care would be with their foster carer and for those in a children's
home, with the manager or the people who work with them in the
children's home. You are absolutely right that there are a number
of relationships with adults, and the whole purpose of the Bill
and of the Care Matters agenda is to try and stabilise that and
to give more stability to those relationships, which includes
the ones you mentioned.
Q44 Annette Brooke: Can you tell
me whether the children would be able to make decisions about
whether they have an independent visitor, or whether, in fact,
they have any say in who the independent visitor is?
Kevin Brennan: Yes, the children
have the right to refuse to have an independent visitor or to
refuse a particular independent visitor if they wish. The idea
of the independent visitor is not as an advocate, social worker
or parent, but as someone to befriend them and to provide them
Q45 Annette Brooke: I just hope that
they are not going to get bewildered with all these adults. I
think that it is really important that the child should be empowered
to choose these relationships.
Kevin Brennan: That is an extremely
fair point, but we are not doing this because we decided that
it would be a good idea, but because children and young people
themselves said that they welcomed it.
Q46 Annette Brooke: Can I just ask
you whether the situation relating to school trips has been sorted
out? It has been my understanding that it is quite embarrassing
for children in care, because special permission has to be obtained
before they can undertake ordinary activities. Some of those issues
have been sorted out, such as sleepovers and things like that,
but I understand that school trips are still a bit of a problem.
Kevin Brennan: They can be. This
is something that I am personally looking into, after finding
two recent occasions when I went around visiting and speaking
to young people in care about whether they have had problems over
things like passports. For example, getting a passport renewed
when it runs out, or getting a passport for the first time might
be a problem. For some reason or another, being able to procure
a passport seems to be an extraordinary challenge to the system.
For a young person in school, when all their friends are going
on the school visit, wherever it may bein one case, the
visit was to Lourdes, with a Catholic schoolbut they are
not able to go, that completely isolates them.
Those are the sorts of practical things that
we have to try to sort out. Yes, a lot has been done to try and
clear the bureaucracy away from who can give permissionwho
can sign the form. What we want to achieve is a situation where,
for a young person in care, it is no more difficult for them to
be able to participate normally in all the other activities of
a school or other educational activities than any other young
Q47 Annette Brooke: I am really pleased
to hear that. I am sure that we will discuss it more during the
Finally, we are talking a lot about improving
the situation for children we know about, yet the Bill has clause
31 or 32, whichever it is now, on private fostering. We were assured
by Margaret Hodge, I think, that there would be great deal of
work to increase the registration of situations where there is
private fostering. The statistics show that there were 730 cases
in 2005 and only 1,250 in 2007, yet the professionals in the area
estimate that there are possibly 10,000 children in private fostering
arrangements. We have had legislation safeguarding vulnerable
people, but how can we safeguard, look after and promote the welfare
of children who we know nothing about?
Kevin Brennan: As you rightly
say, the current position is one of notification rather than registration.
The Bill extends the sunset clause to allow the Government to
bring in a scheme of registration.
Q48 Annette Brooke: Why do you not
just get on and do it?
Kevin Brennan: The reason that
we have not done it is that we are convinced that we should give
more time to allow the notification system to work. There are
only two years of statistics so far available within the notification
system, and to give it an opportunity to work, we think that it
needs more time. We have not ruled out a registration scheme.
I accept that we are not doing it at this stage, and we think
that the notification scheme needs more time to be effectively
evaluated, but we have not ruled that out.
We want to ensure that we have enough evidence,
because it is a significant area of regulation to get into, where
you require prior registration of any private fostering arrangement.
It is a significant step forward, and we do not want to do it
without having properly evaluated all the evidence. As I said,
there are only two clear years of operation so far of the notification
scheme, and notification is building as people become more aware
of the scheme. I accept that you would like us to go further at
this stagewe are not planning to, but in the Bill, we leave
that option open by extending the sunset clause.
Annette Brooke: I shall return to that.
Q49 Chairman: I am sure. Minister,
you will know that, in the previous incarnation of the Committee,
we were keen on the value of out-of-school educationdespite
the horrible tragedy yesterday. These things happen; we are all
human beings. We very much recommended that out-of-school education,
if done well, is a transformative part of education, and we would
not want looked-after children to be excluded from that.
Something that Annette took up with you was
the question of how many adults there are surrounding a child.
I wonder whether you have had a conversation with the Children's
Commissioner or anybody else about a mentoring scheme involving
someone of the young person's age? Is there someone in school
or some situation in which a person of their own age could be
partly a mentor?
Kevin Brennan: Yes, that sounds
like a good suggestion. It is not written in the Bill, but it
is interesting what young people themselves tell you about how
they react and relate to one another. One young person said to
me last week, "I never tell anyone at first that I am in
care, because people will make assumptions about me if I do."
It is a good suggestion for us to try to build awareness more
Q50 Chairman: In a separate inquiry
that I am doing under the Skills Commission on information guidance
and advice, we had an evidence session yesterday with young people.
The young people told us very clearly that they would value advice
from someone of their own age or slightly older on, for example,
careers. That chimes with something that Annette said.
Kevin Brennan: Mentoring is a
powerful area that we could do a lot more in. I echo your comments
about learning outside the classroom and the importance of school
visits and educational trips, and also your words of sympathy
to the family of the young man who was unfortunately killed on
a school trip. I was struck by the bravery of the parents and
what they said in their reaction to that terrible tragedy.
Learning outside the classroom is so important,
and we issued an extensive action plan recently, where we emphasised
that we think that it is important and an integral part of children's
education. For children in care, that is even more so. I have
seen that transformational impact that you talked about on a group
of young care leavers who were taken on outward bound trips to
North Wales, taken by the fire service on a training course for
a week and then taken out to Romania to clean up a children's
orphanage. That had an enormous impact on those young people,
to their benefit.
Q51 Chairman: When a tragedy like
this occurs, the press tends to go into a national spasm, whereas
the previous Committee found that the safest place possible for
your child was on a school trip; indeed, a dangerous place was
at home with the parents.
Kevin Brennan: It is the paradox
Q52 Mr. Chaytor: Minister, on Monday
of this week, Lord Adonis announced that the Government were going
to rip out clauses 7, 8, 9 and 10 of the Bill and replace them
with a series of new clauses. He wrote to the Opposition spokesperson
in the Lords. We have a copy of the letter, but it is a detailed
and complex letter and I wonder whether you could simplify it
Chairman: Only Lord Adonis could understand
Kevin Brennan: I will try my best,
Chairman. The reason that those clauses have been withdrawn and
replaced by a single new clause, as well as other changes to the
schedule, is that it became apparent that the tensions between
the different duties and factors that come into play when making
a placement decision about a child may not have been clear enough
in the previous clauses. We wanted to take the opportunity, having
had the Bill scrutinised and given it some more thought, to be
absolutely clear about that.
Perhaps the easiest way for me to try to explain
thisI cannot quite do it in the way that Lord Adonis would,
but I will do so in my own simple wayis that where the
state is getting involved in family life in this way and decisions
are being taken about whether to take a child away from their
family and place them somewhere else, we must make it clear what
the principles involved are. There are phrases in the Bill that
have a technical meaning, which I will try to explain.
The first phrase in the Bill is "consistent
with the child's welfare". When a local authority has to
take the decision on whether it is safe to allow a child to remain
with their parentsit must be our assumption that the starting
point is that a child should live with their own parentsthey
have to decide whether it is consistent with the child's welfare
to do so. What that means, technically, is whether it is safe
for that child to stay with their parents. If it is safe, the
child should continue to live with their parents. In layman's
terms, that is what it means.
However, if the local authority decides that
it is not safe for the child to live with their parents, there
is a different test when they decide where to place that child.
The overarching structure of that test is the phrase stating that
they need to place the child in order to "safeguard and promote
the child's welfare." That means, in law, something very
different from "consistent with the child's welfare."
To "safeguard and promote the child's welfare" means
that they should attempt to place the child where they will flourishwhere
is the best place for that child to flourish? That is a very different
test. It is not up to the state to decide whether my child would
be better off living with your family, because they would flourish
there; it is up to the state to decide whether my child is safe
remaining with my family.
Once the state takes charge as the parent, it
is the state's responsibility and we are re-stating that. That
is what we are doing by tabling this new clause; we are re-stating
that, at that point, it is the job of the state to place the child
where that child will flourish. Then we are underneath that overarching
roof, putting in various rafters that hold that roof up. The factors
that should be taken into account include things like placing
the child nearwell, actually, first of all, I should say
that there is a hierarchy to this.
First and foremost, placing the child with family
or friends should be taken into consideration, and relatives in
particular, if possible, because we take the position that that
is a responsibility that the state should take into account. If
it is possible to place within the family, it should be the first
consideration, but there is not an absolute duty to do so. Beyond
that, you need to look at factors like whether they can be placed
within the authority. In other words, can you place them within
their area? Can you place them near their school? Can you place
them in such a way that it will not be disruptive to them?
Q53 Chairman: One of the factors
relates to prison education. If a young person comes out of young
offenders institution and goes back to the community from which
they came, you can guess that they will go back into their old
circle with its drug addiction or whatever. Sometimes the best
option for a young person who has perhaps been abused, physically
or sexually, or has just been running with pretty wild kids, is
to be away from their environment. In some circumstances their
best chance of thriving would be out of the community from which
they came. Will the Bill inhibit that?
Kevin Brennan: That is a good
example of the sort of factors that would have to be taken into
account in making such a decision. In considering whether the
child should go back to their parents, the test is stronger and
quite rightly so in relation to the state's involvement in family
life. That test is: is that child safe living with their parents?
If the answer to that question is yes, they go back to their parents
even if it is a dodgy area. The state does not have the right
to pick and choose who the parents are.
Having said that, if it is not safe and the
local authority is considering a placement there is a duty to
consider whether they can place the child with family and friends
and that is a stronger duty than the other duties. However, it
is entirely consistent that they might decide, given that the
test in this case is to safeguard and promote the child's welfare,
that the aim would be better served by placing the child somewhere
out of that area. It is completely open to the local authority,
in exercising that judgment, to take that decision.
Mr. Chaytor: That was a helpful clarification
of the distinction.
Q54 Mrs. Hodgson: I should like to
ask about post-18 foster care. There seems to be no provision
in the Bill for foster children to stay with their foster parents
between 18 and 21. Do you consider the current arrangements for
continuing care post-18 for children who are fostered to be adequate?
Kevin Brennan: In that area we
are piloting arrangements to make it easier for young people to
be able to stay with their foster carers up to the age of 21.
They are legally adults when they reach the age of 18. Clearly
there are complexities around the financial implications for all
concerned in doing that. It already happens, but it is reported
back to us that it is very tricky. Sometimes local authorities
wonder whether what they are doing is entirely legal. So we are
piloting arrangements, because we want to be able to allow young
people, who have been looked-after up to the age of 18, to have
more permanency and stability and to stay with foster carers if
they can up to the age of 21. We are piloting arrangements with
a view to getting the right structure in place so that we can
do that more broadly across the piece. As I said earlier, on average
young people leave home at the age of 24. In the past the assumption
has been that you can drop the young person off that cliff edge
at 16, and that even with all their other problems they will pick
themselves up and be able to cope. Clearly this is something we
are keen to develop.
Q55 Mrs. Hodgson: Will it require
new primary legislation if you decide to do something? Should
you not be looking to do that with this Bill?
Kevin Brennan: It may do, but
that depends on what evidence comes out of the pilot. We need
to understand more clearly the various implications of allowing
young people to stay with their foster carers up to 21, in terms
of benefits and taxation and the legal status of that relationship
between the foster carer and the young person. We have powers
to regulate the carers of 18 to 21-year-olds under existing legislation,
or under the Health and Social Care Bill if it proves necessary.
It may be possible to do it through secondary legislation.
Chairman: Let us go on to the last section,
which is on youth justice and health issues. Fiona will lead us
Q56 Fiona Mactaggart: Absolutely.
We know that a lot of looked-after children unfortunately end
up in the youth justice system. I am concerned about what happens
when those children leave custodyoften they are still children.
Do they lose their looked-after status when they go to jail? Are
they still looked-after children when they leave jail? What is
going on? What are the proper arrangements for them?
Kevin Brennan: This is where the
definition issue comes in regarding looked-after children and
children in care. Looked-after children is a broader definition,
and includes every child and young person who is in care, whether
they are in care as a result of a care order, or voluntarily accommodatedin
other words, "I have a teenager I cannot cope with any more,
and the local authority is going to have to look after them."
In the latter case, where a young person is
voluntarily accommodated and they go into youth custody, they
lose their looked-after status. We have been concerned about that,
which is why we are making it a requirement in the Bill that they
should be visited by the local authority. You are quite right
that young people in those instances may be effectively forgotten.
The institution where they are kept in custody is unaware of their
history and previous status, and proper planning does not take
place for when they come out. The Bill will make it a requirement
that they be visited by the local authority by whom they were
previously looked-afteralthough they have technically lost
looked-after statuswith a view to having proper plans in
place for when they come out, whether that means going back and
living with their parents, moving on to some sort of independent
living or, as I think it will be in many cases, being looked-after
again by the local authority when they come out of custody. That
would be part of the planning process.
Q57 Fiona Mactaggart: Who will these
visitors be, and what powers will they have?
Kevin Brennan: They will be visitors
from the local authority children's services department. They
will have a duty to visit the young person in prison and then
to collaborate with the youth justice authorities on planning
for that person's education while they are held in custody and,
in particular, for what happens when they come out of custody.
Q58 Fiona Mactaggart: I wish them
luck. As someone who, through a charity, has spent quite a lot
of effort trying to collaborate with youth justice authorities
to provide housing for young people leaving prison, I have to
say that, because their targets say that if they have given the
young person advice or found them a place on a sofa for one night
they think they have passed, it is often the case that young people
leaving prison go into homelessness almost instantly and, therefore,
into a great deal of vulnerability. Are there particular provisions
in relation to the housing of these young people?
Kevin Brennan: I think what the
provision does is to create a duty for there to be co-operation
under section 10 of the Children Act 2004. Taking on board your
point about that, you are quite right that there has in the past
been too little planning for the housing of young people coming
out of custody, who are often very vulnerable. We hope that this
provision and the creation of this extra duty will very much improve
Q59 Fiona Mactaggart: So do I. How
will we know if it does? How is this kind of thing going to be
Kevin Brennan: Part of the Care
Matters agenda is that there will be an annual ministerial stocktake
of how implementation of the plan is developing. It may well be
that you will want to play a role in having a look at that stocktake,
and at how things are going.