Children and Families Bill

Memorandum submitted by Action for Children (CF 117)

 

Background

Action for Children has supported numerous amendments that sought to strengthen the Governments objectives in this Bill, during Committee Stage. This submission brings together the amendments we have supported across several parts of the Bill.

Part 1 - Adoption and children looked after by Local Authorities

We are supportive of the Governments aspiration of ensuring there are no unnecessary delays in the adoption system, as well as the intention in the Bill to promote fostering for adoption and improving support for adoptive families. To ensure we these reforms have the desired impact, we have supported the following amendments to the Bill:

Promoting effective work with families’ pre-proceedings

We support the Family Rights Group proposed amendment which aims to ensure effective work is undertaken to explore all safe family options for the child, to avert the need for them to become looked after in the care system and be raised by unrelated carers.

Insert new clause into Children Act 1989: s.47(8A) Pre-proceedings work with families:

Where, as a result of complying with this section, a local authority conclude that a child may need to become looked after in order to safeguard and promote their welfare, the local authority must, unless emergency action is required, first

1) Identify, and consider the willingness and suitability of any relative, friend or other person connected with the child, to care for them as an alternative to them becoming looked after by unrelated carers;

2) Offer the child’s parents or other person with parental responsibility a family group conference to develop a plan which will safeguard and promote the child’s welfare

Improving sibling contact

We support the following amendment which would require local authorities to allow children in care contact with their siblings as well as their parents/others with parental responsibility.

In clause 7 insert a new sub-clause (6) in s.34 (1) Children Act 1989 add after subparagraph (d) a new subparagraph

‘(e) his siblings (whether of the whole or half blood); and’

In schedule 2 para 15 Children Act 1989, after subparagraph (c) insert a new subparagraph

‘(d) his siblings whether of the whole of half blood)’

Foster for adoption (Clauses 1)

We support the Family Rights Group’s proposed amendments for the foster for adoption clauses in their current form:

Clause 1 is not fit for purpose in its current form. We therefore recommend that parliament redrafts the Clause in accordance with one of the following options:

Option 1: That the Clause be deleted. It does not need to be replaced since it is possible to place children with permanent carers on a temporary foster care basis under current law, as Coram’s concurrent planning model demonstrates.

Option 2: That the Clause be deleted and replaced with the following new clause

‘The local authority has a duty to consider as a part of the permanency plan for C, placement with carers who could become the child’s permanent carers where this is in C’s best interests.’

This would focus the local authority on the importance of achieving a permanent placement according to the child’s needs and the placement criteria in Section 22 C Children Act 1989. Legal permanence options include Special Guardianship, Residence Orders, long term foster care or adoption.

Option 3: That the clause be amended as follows:

i) Page 1, line 9

After ‘adoption for C’ insert ‘and are satisfied that a placement falling within paragraph (a) of subsection (6) would not be consistent with C’s welfare’

ii) Page 1, line 12

Delete ‘(7) to (9)’ and insert ‘(7)(c), (8)(a) and (9)’.

iii) Page 1, line 13

Insert (4)

1. The child may not be placed under subsection 9A (a) unless both parents have been referred to legal advice and have consented witnessed by a Cafcass order or there is an interim or full care order in place.

2. As soon as the local authority are considering a foster for adoption placement, both parents (and anyone else with parental responsibility for the child) shall have access to free, non means and non merits tested legal advice.

Adoption and Ethnicity (Clause 2)

Alongside the NSPCC, Barnardo’s, Family Rights Group and Children’s Rights Alliance for England we are concerned about the removal of ‘due consideration’ to a child’s race and ethnicity within the Bill. Interracial adoption does add another specific dimension to the adoption experience which we believe should be considered by a court or adoption agency in coming to a decision relating to the adoption of a child, but not necessarily over and above other factors. We therefore support the Select Committee on Adoption Legislation’s alternative recommendation to refer to it within the welfare checklist and believe the Bill should be amended accordingly.

Clause 2, page 1, line 15, at end insert-

„(1A) In subsection (4), after paragraph (f) insert-

"(g) the child s religious persuasion, racial origin and cultural and linguistic background, although this paragraph does not apply to an adoption agency in Wales, to which subsection (5) instead applies.". .

Part 2 - Family Justice

Shared parental leave and flexible working (Clause 11)

Action for Children is a member of the Shared Parenting Consortium and shares the concerns about clause 11 of the Bill. We strongly support measures that promote meaningful relationships between children and their parents, both before and after parental separation. However, it is our view that introducing a legislative presumption to this effect is not the way to achieve this.

We do not agree that cooperative parenting should be enshrined in legislation in this way as the legislative change is likely to undermine the ‘welfare paramountcy’ principle and result in negative and unintended consequences. Our strongly preferred option is for clause 11 to be removed from the Bill entirely . However, if the government does decide to retain the clause, our second option would be to remove the ‘parental involvement’ presumption, and include ‘the quality of the relationship that the child has with each of his parents, both currently and in the foreseeable future’ as a factor in the ‘welfare checklist’ in s.1(3) of the Children Act 1989. If, however, the clause is retained in its current form, it is our view that a definition of the term ‘involvemen t’ should be added to clause 11.

It is also our view that a clause should be added to the Bill which requires the government to monitor and evaluate the aims, outcomes and impacts of the provisions c ontained in part 2 of the Bill .

Part 3 – Children and Young People in England with special educational needs

Action for Children has welcomed the ambitions of the Children and Families Bill to provide a clearer focus on outcomes and a more coherent, joined up approach to meeting the needs of disabled children and young people. However, in some areas we believe that the provisions in the Bill do not go far enough.

Action for Children has supported amendments alongside EDCM (Every Disabled Child Matters Coalition) the Special Educational Consortium (SEC) and the Standing Committee for Youth Justice (SCYJ) that sought to ensure:

· all disabled children (not only those children with an identified SEN) are covered by the Bill.

· the benefits of integrating commissioning and planning between health, social and education provision are realised.

· children in custody are not excluded from the reforms

We are in support of numerous amendments tabled, in particular in the following areas:

Education, Health and Care Plans (EHC)

Currently only children with significant educational needs will get EHC assessments, the following amendments were tabled in light of this:

An a mendment to ascertain how assessments for EHC plans could be triggered when a disabled child has social care needs, but not significant special educational needs.

Clause 36, page 28, line 9, at end insert new sub-clause:-

‘() the child or young person may be a disabled child under Section 17 of the Children Act 1989 or the Chronically Sick and Disabled People’s Act 1970’

An a mendment to understand whether assessments for Education, Health and Care plans should be triggered when a disabled child may have health needs, but not significant special educational needs.

Clause 36, page 28, line 9, at end insert new sub-clause:-

‘() they are a disabled child or young person under the Equality Act 2010 who may need healthcare provision in order to manage their impairment’

An amendment to explore whether a local authority could be put under a duty to provide eligible social care needs specified in EHC plans. This duty is already part of local authority statutory responsibilities under the Children’s Act. This amendment would simply bring together existing responsibilities.

Clause 42, page 31, line 38, at end insert new sub-clause:-

() A local authority that maintains an EHC plan for a child or young person must secure the social care provision identified through an assessment under Section 17 of the Children Act 1989 specified in the plan

An amendment to explore whether providers of relevant early years education can also request an assessment for an EHC plan, in the same way as schools and post-16 institutions can. As currently drafted, early years providers will not be able to do this.

Clause 36, page 27, line 18, after ‘post-16 institution’ insert:-

‘or provider of relevant early years education’

An amendment to explore whether all relevant early years providers can be named in EHC plans. As currently drafted, this will not be the case

Clause 38, page 29, line 27 at end insert new sub-clause:-

‘() a place at which relevant early years education is provided’

The local offer – duty to provide

An amendment to explore whether services set out in the local offer should have to be provided

Clause 30, page 23, line 22, at end insert new sub-clause:-

‘() where a service is set out in the local offer, the responsible agency has a duty to deliver that service’

The local offer – creating a national framework

An amendment to seek clarity from the Government on whether it is willing to provide a national framework which will support the development of local offers

Clause 30, page 24, line 2, at end insert new sub-clause:-

‘() regulations must make provision about a national framework, including:

() the principles underpinning the local offer

() how services in the local offer are to be reviewed

() the scope of what should be covered by the local offer

() the format in which a local offer will be prepared and published

() how services can be held to account for failing to deliver what is set out in the local offer

Young people in custody

As a member of the Standing Committee for Youth Justice (SCYJ) we are in support of their calls on Government to:

· explain why they intend to explicitly exclude children and young people in custody from the new SEN framework;

· provide evidence to Parliament of how this decision supports the Government’s broader ambition to put high quality education at the heart of the youth justice system; and

· carefully consider the deletion of Clause 69 of the Children and Families Bill and extending the new SEN framework to children and young people in the secure estate.

Part 6 – Statutory rights to leave and pay

Support for family & friends carers when children are not looked after (Clause 91)

We support the Family Rights Groups proposed amendment that would place a duty on local authorities to provide support services to all family and friends carers raising children who can demonstrate the child cannot live with their parents.

The amendment, which mirrors the special guardianship support service required by s.14F CA, seeks to redress this shortcoming by requiring local authorities to provide support to meet identified needs of children being raised in family and friends care under a private arrangement or residence order.

S. 17C Support for family & friends carers when children are not looked after

(1) Each local authority must make arrangements for the provision within their area of family and friends care support services, including

(a)counselling, advice and information; and

(b)such other services as are prescribed, in relation to family and friends care.

(2)The power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support.

(3)At the request of any of the following persons-

(a) a relative, wider family member or friend caring for a child in any of the circumstances (hereinafter referred to as C) set out in subsection 4 below;

(b) a parent or other person with parental responsibility; or

(c)a child living with C in circumstances set out in subsection 4 below; or

(d)any other person who falls within a prescribed description, a local authority must carry out an assessment of that person’s needs for family and friends care support services.

(4) The circumstances referred to in subsection (3)(a)&(c) are:

a) the child comes to live with C as a result of enquiries or plans made under s.47 of this Act; or

b) the child comes to live with C following an investigation under s. 37 of this Act; or

c) C has been granted a Residence Order/Child Arrangements Order to avoid the child being looked after, within care proceedings on the child or following the accommodation of a child; or

d)there is professional evidence of the impairment of the parents’ ability to care for the child; or

e) the parent is dead or in prison

(5) A local authority may, at the request of any other person, carry out an assessment of that person’s needs for family and friends care support services.

(6)Where, as a result of an assessment, a local authority decide that a person has needs for family and friends care support services, they must then decide whether to provide any such services to that person.

(7)If-

(a)a local authority decide to provide any family and friends care support services to a person, and

(b)the circumstances fall within a prescribed description, the local authority must prepare a plan in accordance with which family and friends care support services are to be provided to him, and keep the plan under review.

(8)The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of family and friends care support services in accordance with plans and reviewing the provision of family and friends care support services.

(9)The regulations may in particular make provision-

(a) about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;

(b) about the way in which a plan is to be prepared;

(c) about the way in which, and the time at which, a plan or the provision of family and friends care support services is to be reviewed;

(d) about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;

(e) as to the circumstances in which a local authority may provide famil y and friends care support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);

(f) as to the consequences of conditions imposed by virtue of paragraph

(e) not being met (including the recovery of any financial support provided);

(g) as to the circumstances in which this section may apply to a local authority in respect of persons who are outside that local authority’s area;

(h) as to the circumstances in which a local authority may recover from another local authority the expenses of providing family and friends care support services to any person.

(10) A local authority may provide family and friends care support services (or any part of them) by securing their provision by-

(a)another local authority; or

(b)a person within a description prescribed in regulations of persons who may provide family and friends care support services, and may also arrange with any such authority or person for that other authority or that person to carry out the local authority’s functions in relation to assessments under this section.

(11)A local authority may carry out an assessment of the needs of any person for the purposes of this section at the same time as an assessment of his needs is made under any other provision of this Act or under any other enactment.

(12)Section 27 (co-operation between authorities) applies in relation to the exercise of functions of a local authority under this section as it applies in relation to the exercise of functions of a local authority under Part 3.

Part 5 - The Children’s Commissioner

We believe , alongside others in the voluntary sector, that the legislation would be further strengthened it included the following amends:

To ensure that the OCCE is required by legislation to have regard to the views of children and to report back on how it has achieved this:

Amendments: 270, 271, 272 and 273 – grouped together

Amendment 270

Clause 77 (2B) (1) page 50, line 43, after ‘function’ insert ‘and have due regard to their views’

Amendment 271

Clause 77 (2B) (2) (b) page 51 line 8 after ‘known’ insert ‘and have due regard to their views’

Amendment 272

Clause 82 (7B) (4) (a), page 53, line 5 after ‘children’ insert ‘and have due regard to their views’

Amendment 273

Clause 83, page 53, line 32, at end insert ‘and the extent to which the Commissioner has had due regard to their views’

To e nsure that the status of the OCCE meets international standards. This would also ensure the Commissioner s independence from political interference from deciding its activities, timetable and priorities. The Commissioner is funded by the government and this amendment would ensure that in spite of that relationship, the commissioner would rem ain independent from government:

Amendment NC37

„In Schedule 1 to the Children Act 2004, in paragraph 1 (status) after sub- paragraph (2) insert-

"(3) The Minister shall have due regard to the desirability of ensuring that the Children s

Commissioner is under as few constraints as reasonably possible in determining-

(a) the Commissioner s activities,

(b) the Commissioners s timetables, and

(c) the Commissioner s priorities.".

To e nsure that the OCCE has specific regard to children living in custody and separated children who are seeking asylum or have been trafficked:

Amendment 274 – definition of vulnerable children

Clause 84, page 54, line 16, at end insert-

(5A) A child is within this subsection if he or she is detained in pursuance of-

(a) an order made by a court, or

(b) an order of recall made by the Secretary of State.

(5B) A child is within this subsection if he or she has been identified by a professional

as a potential victim of trafficking.

(5C) A child is within this subsection if he or she is a separated migrant child.’

Young carers

As a member of the National Young Carers Coalition, we are in support of the ir proposals that seek to improve the lives of young carers. 

The introduction of the Children and Families Bill and the draft Care and Support Bill has presented a significant opportunity to amend and clarify the legal framework for young carers. T he Government has made significant steps to strengthen the rights of adult carers under the recently published draft Care and S upport Bill. Despite the Government acknowledging that the intention is not to weaken young carers’ rights but to separate them in law from adult carers, steps need to be taken to reform and consolidate the law for young carers so that there is:

· Clarity in the law for both adults and children’s services for identifying, assessing and supporting young carers and supporting the wellbeing of the whole family

· Young carers are not left with unequal rights compared with adult carers

· Clear interface between the proposed draft Care and Support Bill and children’s legislation

Further points to be raised during the progression of the Bill

Reforming the leaving care system in England

A number of charities are working together to put the case that the whole system of leaving care needs to be reassessed and requires urgent reform . We are in support of proposals that are to be brought forward at Report Stage in the Commons, ahead of the Bill progressing into the Lords.

Neglect Law Change

The campaign to update the 80 year old law on child neglect has seen some real progress. Following thousands of letters and emails from Action for Children supporters, Ministry of Justice Minister, Damien Green MP, asked us to work with his staff to ensure the right evidence of the need to update the law is in place. We are doing this now and may look at opportunities to update the law on child neglect during the later stages of the Children & Families Bill.

April 2013

Prepared 26th April 2013