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Lord Campbell of Alloway: There is a gap identified by my noble friend Lord Howe. I do not think it is intentional and it could easily be cured. A position similar to that which arose on Clause 44 arises in subsection (6) on page 64. It is not the same but it is similar. The Secretary of State makes regulations which make two types of provision. One type of provision is for assessment; the other type of provision is for the provision of services. Very oftenindeed, as a rulethe assessment, certainly with an SEN case like that, involves making provision for the services. But there is a gap. There is nothing here to require the provision made in the assessment to be implemented, and that requires attention. That gap was pointed out by my noble friend Lord Howe. I had not seen it until it was mentioned, but it exists and requires attention.
First, I recognise that getting support services right for special guardianship orders will be an important part of ensuring that this new system will work effectively. There is no argument with Members of the Committee who have spoken on that matter. However, special guardianship is different from adoption. It will not involve the same type of lifelong permanent legal separation and transfer to another family. As a result, we have taken a slightly different approach to special guardianship orders from that of adoption orders in regard to support services.
Secondly, in our debates on adoption and adoption support services we are building on experience over many years. With special guardianship orders we are entering into a new territory, so body of evidence does not exist. That is why we seek to make the provisions in this part of the Bill somewhat more flexible than are contained in other parts of the Bill, particularly in relation to adoption support services.
Lord Campbell of Alloway: What does "flexibility" mean? If you are going to have a form of assessment, all right you will take a different approach, fair enough. However, flexibility to the degree that a recommendation and a requirement in an assessment is not implemented is a degree of flexibility which I do not regard as flexibility; it goes beyond the limit. I wonder whether the noble Lord will take the pointI do not seek a replyand consider it?
Baroness Barker: I want to take issue with the Minister's comment that this is new. At some point in the 1920sI am unsure of the exact datemy great-grandfather went to a funeral and he came home with three children. Their mother had died and their father could not cope. After a very short while, the eldest daughter went back to live with the father, then the boy went back but the other girl remained living with my grandmother's family. It was not called "special guardianship"; it was just what people did. It is what people and grandparents have always done. Therefore, although the legal format has never existed, the practice is well established. I therefore believe that the report from the Family Rights Group is important. There is a body of experience and knowledge out there that we ought to reflect in the law, rather than suppose we are starting completely from scratch. I need to make that point strongly.
I am trying to make two points. I say to the noble Lord, Lord Campbell of Alloway, that I was developing an argument in relation to the first part of the group of amendments; that is, those who are entitled to ask for an assessment of support. My argument is that we have given ourselves more flexibility in that area in relation to special guardianship support services than we have in relation to who is eligible to apply for adoption support services. We want to see how the system will work out and to enable ourselves to have that flexibility. That is why at Section 14F(2) we have the ability to specify "within a prescribed description" any other person who falls within the definition of those who are eligible to request services.
I shall return in a moment to the later issue raised by the noble Lord, Lord Campbell of Alloway. As regards our current thinking on where we believe priorities for support should be, we need to target help where it is needed most and in particular to support special guardianship places where the child or young person is looked-after when the order is made. These
However, I accept that the issue should not be considered in isolation, as though the only potential source of support was through the specific special guardianship order provisions. That is not the case. Under other Sections of the Children Act there will also be duties on local authorities to provide support services for children and families.
In particular, under Section 17, local authorities are under a duty to safeguard and promote the welfare of children in need in their area; to provide services for children in need, their families and others and in particular; and to promote, so far as it is consistent with that duty, the upbringing of such children by their families.
We shall consult on these issues and it may be that consultation and experience suggest that it is appropriate for the right to an assessment for special guardianship to be automatically extended to all people affected by the making of special guardianship orders in the same way as adoption support. Our minds are not closed on that matter, but we want to see the results of consultation and of experience.
I would again refer Members of the Committee to new Section 14F(2)(b) and (c) and to the five lines that follow. First, birth familiesthe subject of one of the amendmentscould well fall within the list of those in the prescribed description. Secondly, I refer Members of the Committee to the words that follow:
I hope that Members of the Committee will take the point that I have been seeking to make; that despite the interesting thoughts put forward by the noble Baroness, Lady Barker, this is an interesting new legal development. It seems worthwhile waiting to see how it develops and we can then make adjustments. The flexibility in the regulation-making power allows us to do so.
We will work and consult widely on its use. We believe that there will be a positive response from local authorities. However, I do not wish to be misinterpreted as suggesting that we are not committed to providing appropriate support for special guardianship placements. There would be no point going down the route of special guardianship orders unless we could ensure that in the appropriate places and circumstances decent support services were available.
We come to the question: if an assessment has taken place, what should be the responsibility on the local authority to provide those services? When the noble Earl, Lord Howe, complained about the amount of resource spent on social services, I was minded to draw his attention to the reluctance of the leaders of his party in another place to say that they would spend the amount of money that the Government have announced for health, social services and many other services in the spending review.
That brings us to a very important issue of principle. It is all very well Members of the Committee saying that we must specify that this matter has to be a duty, but they also have to accept that there will be a monetary consequence and there will be a consequence in relation to the priorities of local authorities. Local authorities have to be allowed to use their discretion in determining whether to provide support services in each individual case.
Baroness Barker: I thank the noble Lord for giving way. He may be aware that there is one local authority in England which has a blanket policy of not providing adoption support payments. Having listened to what the noble Lord says, am I right to assume that the special guardian system will operate in exactly the same way and that if a local authority has a blanket policy that it will not make special guardianship payments, the noble Lord and his department will be unable to do anything to overturn the policy in that area?
Lord Hunt of Kings Heath: The noble Baroness forgets the debate that we had only three weeks ago when we discussed all the measures that we intend to take to ensure that the overall performance of local authorities is of a high standard. What possible interest could there be for the Government in allowing local authorities to provide poor quality services? Why are we doing this? We are doing it to improve adoption services. Special guardianship orders are an important supplement to that process and will not work unless local authorities do an effective job. We have published the adoption standards which will be covered by Section 7 guidance. We have a strong performance assessment process and the Social Service Inspectorate will monitor the performance of local authorities.
The noble Baroness's party frequently complains about the central diktats which the Government are alleged to impose on local government. I have described a very strong performance management approach to adoption services on the part of local authorities. However, we must allow local authorities to have discretion. If we were to insist that there was a statutory duty to provide special guardianship support services, we would be placing a higher duty on that than on most of the services which local authorities provide. That would constitute a difficulty.
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