Select Committee on Children, Schools and Families Minutes of Evidence

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 all—in 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 disability—it 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 carer—of great importance—and 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 core relationship?

  Kevin Brennan: The core relationship for most children and young people in care will be with their foster carer.

  Q43  Annette Brooke: So why does the social worker have the £500—why 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 with opportunities.

  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 be—in one case, the visit was to Lourdes, with a Catholic school—but 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 permission—who 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 person.

  Q47  Annette Brooke: I am really pleased to hear that. I am sure that we will discuss it more during the Bill.

  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 stage—we 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 education—despite 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 generally.

  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 of risk.

  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 for us?

  Chairman: Only Lord Adonis could understand it.

  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 this—I cannot quite do it in the way that Lord Adonis would, but I will do so in my own simple way—is 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 parents—it must be our assumption that the starting point is that a child should live with their own parents—they 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 flourish—where 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 near—well, 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 on that.

  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 custody—often 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 accommodated—in 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-after—although they have technically lost looked-after status—with 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 that situation.

  Q59  Fiona Mactaggart: So do I. How will we know if it does? How is this kind of thing going to be reported?

  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.

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