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Lord Campbell of Alloway: Would there be any objection to putting an enabling clause in the Bill which was widely drafted, without commitment as to time, when the Secretary of State may so ordain? There would be no need for parliamentary time and new legislation; it could be done if the Government wanted to do it.
The Earl of Listowel: I am sure that the noble Lord, Lord Campbell, will correct me if I am wrong but, as I have understood it, that is just about what these amendments offer. They are very permissive and the regulations can be made when the Secretary of State desires to make them.
I listened with great interest to what the Minister said in reply and I thank him for the details of the education figures. I know that he and his colleagues
are giving a great deal of thought to this area. I know that the Minister is working with the noble Baroness, Lady Ashton of Upholland, and the Secretary of State on this matter.There are a few points which I should have made in my opening remarks, which Members of the Committee may be interested to hear, in response to what the Minister has said. I did not wish to interrupt the Minister while he was speaking.
The Minister quite rightly said that looked-after children are looking for choice in who is their advocate. It may be a family friend, or it may be a peer, and so on. Our amendments would not preclude a child turning to a peer or any others for help. However, we need to cover the example the child has asked for an advocate and the local authority then says that the child can have its advocate, but the child does not want that. Our amendments would that prevent from happening. For instance, a girl called Amy was concerned about being moved out of a place where she was very happy and the local authority was approached. The foster parents were told, "No, you cannot use that advocacy service; you can use ours". In the end, no advocacy was provided. That is a concern that this amendment would cover.
The Minister expressed concern about whether there will be sufficient numbers of advocates to act in this way. As I understand it, NYAS—the National Youth Advocacy Service—and Voice for the Child in Care, are confident that they can meet the requirements together with the local area advocates now available. They do not envisage a large number of young people taking up this service. If the Secretary of State does not share their confidence, he can choose to implement the amendments—perhaps next year or in two years time—when the time feels right. I thank the Minister for his reply. I look forward to studying it carefully over the recess. If he has any comments on those points, I would appreciate hearing them.
Lord Hunt of Kings Heath: There are two points here. One is the question of advocacy and how important it will be, and we all agree that it is very important. That is why we are having the consultation. The Government take this issue seriously.
It is also worth making the point that, in addition to the potential services that I have mentioned, we have the use of community legal service partnerships. They provide great coverage in England and Wales and bring together those who provide legal and other advice services. This enables us to look at the kind of support which should be available for children, particularly in relation to the legal profession.
As to whether one could accept these amendments on the basis that they are there as a principle and it is up to the Secretary of State and local authorities to get on with it, I understand the temptation but I resist it. I believe that we have to get the definitions right before we go down that path. I realise that this is frustrating and that people are anxious to see the results of the
consultation. However, my advice is that it would be better to see the results, work matters out properly and then consider legislation.
Baroness Noakes: I thank the Minister for his comprehensive reply and for his reply to the points raised by the noble Earl, Lord Listowel, and I thank all noble Lords who have taken part in this important debate.
The Minister referred to difficulties with the timing—that is, that the Government are not ready to go forward with advocacy services and, therefore, it is an inappropriate time to bring forward this amendment. I find that quite difficult to understand. As the noble Earl said, this is a broad power which does not constrain the Government. Indeed, it provides the Government with a framework for implementation when they have reached a view as to the right way forward for advocacy services.
If the Government do not accept the amendment, they will not have a legislative framework available to them and will have to wait for another legislative opportunity—and we all know that that can be difficult. If it were found that the amendment did not cover the kind of advocacy services envisaged once a view is taken, primary legislation may well be required. However, this gives a sporting chance of a legislative framework being implemented quickly once a view is taken.
It is interesting that one did not hear anything from the Minister, as one often does when tabling amendments, about the technical deficiencies of the amendment. One only heard that the Government were not ready to accept it.
Lord Hunt of Kings Heath: I wished to spare the noble Baroness that this time. Although it is a relevant issue, because of the allure of an enabling provision with a technically deficient amendment, one might end up with a law of unintended consequences whereby one did not get the flexibility that one would wish. A defective definition of advocacy would inhibit the development of services at a local level.
Baroness Noakes: I say to the Minister that if it were not to be used, it would just lie fallow in the legislation. However, we believe that it is wide enough for the Government to introduce it. If there are technical deficiencies, I am sure that I and other Members of the Committee who are interested in this area will want to work with the Minister over the Summer to see whether a better amendment can be brought forward. I have to say to the noble Lord, "See you on Report". I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 115 and 115A not moved.]
Clause 115 [Review of cases of looked after children]:
Baroness Noakes moved Amendment No. 116:
- Page 67, line 24, leave out from "be" to end of line 25 and insert "independent of the authority and independent of the case in question."
The noble Baroness said: I rise to move Amendment No. 116, which seeks to amend Clause 115 of the Bill. This clause was introduced by the Government during the passage of the Bill in the other place. It amends the 1989 Act and allows regulations to provide for local authorities to appoint someone to review cases of looked-after children and their care plans. We certainly welcome that mechanism which will help to ensure that each child's case is properly dealt with. The key issue, however, is who will be appointed to carry out the review function. The Bill states that the person will be,
- "a person of a prescribed description".
In another place, the Minister, Jacqui Smith, said that in the Government's view that person needs to have professional expertise in children's services and be independent of the case and its management. We think that independence is important, which is why our amendment is phrased in terms of independence. The term does not appear in Clause 115.
There are two aspects to independence in our amendment. First, I refer to independence from the case in question which is in line with the Government's position, as outlined in another place. I hope that the Minister can readily accept that. It also refers to independence from the authority. That is the area that I wish to explore. I believe that an employee can never be truly independent of his employer. The saying "He who pays the piper calls the tune" contains more than a grain of truth. An employee will be mindful of the views of his superiors, his promotional prospects, his pay reviews and so on.
Although it is true that independence is fundamentally a state of mind, structural factors such as employment make the establishment and maintenance of independence very difficult. Even more importantly, the appearance of independence, and hence its credibility, can be undermined. Amendment No. 116 requires independence from the authority. I expect that the Minister will refer to existing examples of local authority reviewing processes which are wholly internal and have been successful. However, that is success compared with no review process at all. If we are trying to set up new and enduring processes across the whole of local government, requiring some changes to a few existing arrangements should not be a barrier. I beg to move.
5.45 p.m.
Baroness Andrews: I am grateful to the noble Baroness for that clear explanation of the intention of the amendment. The overall aim of Clause 115 is to ensure that all children who are looked after by a local authority, whether they are accommodated voluntarily or come into care as a result of a care order or are placed for adoption under the Bill, should have the arrangements about their lives properly checked and reviewed on a regular basis and also—this is obviously very important—that action should be taken where plans have not been implemented.
The amendment would make it a requirement for the reviewing process to be carried out by reviewing officers who are both independent of the case being
reviewed and independent of the authority; that is, by people who are not employed by the authority. We positively endorse independence as regards case management. I shall explain why we think that we have the relevant provisions in the Bill to achieve that.However, we have some problems as regards the term "independent of the authority" for reasons that I shall explain. Perhaps it would be helpful if I were to outline how care plans are reviewed at the moment, particularly in view of the debate that we have just had. I refer to the contribution of the noble Earl, Lord Listowel, who talked about the importance of improved quality in relation to children. It is important that we understand the thought that goes into care plans.
The current regulations set out requirements for the timing of reviews and the way in which reviews are to be carried out. That is a central part of getting care plans right. The primary purpose of care planning and review is to safeguard and promote the welfare of a child living away from his or her family. Every time that situation changes we have to involve children in negotiations about what they want. The care plan is very much a living document—one that is owned both by the child and by the person taking care of the child. Their needs change, which is why the timing of the care plan reviewing process is set down in regulations to ensure that we have a review built in at appropriate intervals. The first review is to take place within four weeks of the initial placement, the second review within four months of that placement, and thereafter every six months.
Local authority practice varies in carrying out the reviewing process. There are inconsistencies and variations in practice. We have to acknowledge the fact that that has led to drift in terms of care. That is something that we addressed earlier in our discussions. We discussed ways of minimising the risk of such drift.
Over the past few years some local authorities have developed a specific role of reviewing officer to take responsibility for this important activity and to ensure that care plans are properly implemented and are appropriate. Reviewing officers identify the issues, they ask the awkward questions and they chair the review meetings. They make sure that the provision that is considered best for the child is provided. They can influence what happens in individual cases where they are unhappy with a lack of progress. I shall come back to that ability to influence and to bring into the process of negotiation all the available information from across the department and across the authority which will make an impact on good practice.
The provisions in Clause 115 enable us to build on this good practice and to ensure that all local authorities take that approach. It is not about introducing something new, but about universalising the best. Clause 115 amends Section 26 of the Children Act 1989, which as I mentioned earlier enables the Secretary of State to make regulations. In addition, new paragraph (2)(k) of Section 26, as inserted by Clause 115, enables regulations to be made requiring the appointment of a person as a reviewing officer, to
review the child's case. Subsections (1) and (2) of Clause 115 provide powers to describe in regulations who should be appointed and how they will carry out their role.I will come on to what the regulations will contain shortly, but first I would like to emphasise that the content of those regulations will be the subject of wide consultation to ensure that the framework we put in place is fit for the purpose. It will not just be consultation with local authorities but very much consultation with children as well. In all the review processes that we have conducted with young people, we have discovered just how incredibly sensible and farsighted they are in telling us what they want and need. It is important not just to listen but to enable them to follow through on the consultation.
There may be situations, however, where, despite the best efforts and the influencing skills of the reviewing officer, an authority fails to carry out a key part of the care plan. Where that occurs, we need to ensure that there is a remedy. New subsection (2C) of Section 26, as inserted by subsection (2) of Clause 115, will enable the reviewing officer to have recourse to court where the situation demands it. There could, for example, be a situation in which a two-year-old is looked after by a local authority because the parents have lost interest in her care and the reviewing officer can no longer influence the local authority in implementing the care plan. He would be able to refer the case to CAFCASS which would be able to take action on behalf of the child.
New subsection (2)(c) allows the Lord Chancellor to make regulations to extend the function of CAFCASS officers in respect of family proceedings, and it also enables regulations to be made prescribing the manner in which those functions should be carried out. This means that where a child has no family or carer to act, the officer will be able to take proceedings on their behalf.
I turn to the detail of the amendment. It provides that the reviewing officer must be independent of the local authority and independent of the cases which he or she is reviewing. We entirely agree with the need for independence in terms of case management. I shall describe later how we seek to ensure that that happens in practice. However, we do not believe that, in order to guarantee independence, it is necessary for every reviewing officer to be drawn from outside local authority employment.
At the moment, local authorities have a choice. Some local authorities appoint people from outside the service whereas others make an internal appointment. Practice suggests that both work well, but that there can be some positive impact and added value with internal appointments because of the knowledge they bring of the social services system as a whole, how it operates across the local authority and the networks to which they have access.
Most important, however, as will be borne out by anyone who has had to deal with children in these situations, is the type of person recruited, their
relationships and the consistency of those relationships. We believe that local authorities should retain the choice of whom to employ.A reviewing officer must have sufficient status to ensure that he or she can effect the implementation. We believe that that is better done within local authorities. The officer not only needs to have professional expertise in children's services but must be independent of the child's case and management of the case. I hope to reassure the noble Baroness, Lady Noakes, that it is our firm intention to prescribe these requirements for independence and what we mean by that in the regulations made under Section 26.
Reviewing officers have to be objective. They have to be able to ask awkward questions of local authority professional staff, and to require them where necessary to act on behalf of the child. If they have expertise, influence, status and access within the local authority, they will certainly be able to do that.
We want consistency in what local authorities are asked to do while leaving local authorities with flexibility and scope in how to carry out that process. We need a balance between the centre devising the standard and the local agencies devising the mechanism. We do not believe that it is the Government's role to prescribe whom the local authorities should employ.
I believe that the Government's role is to ensure that the level of service for the review of children's care plans is consistent across the country. We shall set standards to ensure this consistency in regulations made under Section 26, which would be amended by Amendment No. 115. Those regulations will enable local authorities to assure themselves that the people or agencies to whom they give the reviewing officer role are in a sufficiently independent position. Of course, we shall be consulting on that and getting best advice and best practice.
As I said, reviewing officers currently can be drawn from separate external organisations. However, we believe that this should be a matter for local authorities to decide. They will have different views, and we want to be able to tell them to use their discretion and best practice. We also want them to be aware of best value because reviewing services is one aspect of the best-value provisions.
I take the point made by the noble Baroness, Lady Noakes, about internal best practice, such as that at Westminster. I shall not reiterate those examples. However, a copy of a letter with various examples was sent to the honourable Tim Loughton in another place. I should be happy to have copies of that letter and the examples sent to her and to any other noble Lord who thinks it would be useful.
We would therefore be concerned if the legislation obliged local authorities to change current arrangements for the reviewing of care plans. We believe that those arrangements are working very effectively in many places and are in the best interests of children. Moreover, they are influencing other local authorities and creating continuity and responsibility.
The Government's intention is to make reviewing officers independent of the management of a case and capable of calling the local authority to account. That will apply whether they are part of an authority or from a separate organisation. That builds on what we know to be good practice and what is currently working. I hope that, with those assurances, the noble Baroness will feel that the case she has made is answered and that she is able to withdraw the amendment.
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