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Lord Clement-Jones: My Lords, I thank the Minister for that passionate reply. He clearly feels strongly about this part of the Bill—as do we on these Benches. I am grateful to him for taking us through his arguments.
On Amendment No. 103, the Minister came as close as he could without changing the primary legislation to conceding our case. He said that what we described was likely in most cases, but that he wanted to leave some leeway in cases in which it was not appropriate. His example was perfectly reasonable. If that is how it works in practice, we shall of course be satisfied. The issue is whether that provision should be in the primary legislation.
The Minister relied heavily on the existence of consultation. I agree that it is perfectly possible for consultation to cover many aspects of special guardianship. But enshrined in Amendments Nos. 106 and 107 in particular is an important principle that should be established in the Bill: all those who are subject to special guardianship should be assessed by their local authority for special guardianship support services. We feel strongly about that.
Amendment No. 108 is a rather different kettle of fish. I do not want to rehearse our previous arguments on adoption support services. Of course there must be some level of discretion; we have no disagreement on that. Resource is a major issue that I do not want to
follow through its full course now. Although I shall withdraw the lead amendment, No. 103, we shall move Amendments Nos. 106 and 107 when the time comes.We welcome Amendment No. 104 so far as it goes, but it still means that financial services will be contemplated only after an assessment. To get to that stage, there must be an assessment, and that is what we want to see.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath moved Amendment No. 104:
- Page 64, line 35, leave out from "information" to end of line 38 and insert "and
On Question, amendment agreed to.
[Amendment No. 105 not moved.]
Lord Clement-Jones moved Amendment No. 106:
(b) such other services as are prescribed,
in relation to special guardianship.
( ) The power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support."
6 p.m.
Page 64, line 44, leave out "may" and insert "must"
On Question, Whether the said amendment (No. 106) shall be agreed to?
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The Lord Chancellor (Lord Irvine of Lairg): My Lords, there being an equality of votes, in accordance with Standing Order 56, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to, unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
6.12 p.m.
[Amendments Nos. 107 and 108 not moved.]
Clause 114 [Accommodation of children in need etc.]:
Lord Clement-Jones moved Amendment No. 109:
- Page 66, line 40, after "accommodation" insert "with their families"
However, despite wide support for the principle, there is widespread concern that the proposed amendment to Section 17 of the Children Act coupled with the amendment to Section 22 legitimises the current local authority practice of providing accommodation—for example, bed and breakfast placements—for children and young people in need without a parent or other person with parental responsibility under Section 17 of the Children Act, instead of providing accommodation under Section 20 of the Children Act, even where there appears to be a clear duty to do so.
We are also concerned that removing the status of "looked after children" from that group removes the duty of local authorities to safeguard and promote their welfare; to consult with them about actions that
affect them and to comply with the regulations designed to ensure that placements are safe and suitable. That undermines many of the commitments made as a result of People Like Us in 1997–98.A further concern is that the clause contains no lower age limit. Technically it could be used to validate the placement of children of any age. There is also evidence to suggest that local authorities are already using Section 17 of the Children Act to provide accommodation to asylum seeker children. The Government do not appear to disapprove in principle. In a letter from the noble Lord, Lord Hunt, to the noble Baroness, Lady David, dated 5th August 2002, accommodation under Section 17 of the Children Act 1989 is acknowledged as a realistic option for older children, whether local or unaccompanied asylum-seeking children, following an assessment of need. If this practice persists in relation to asylum-seeking children, it could bring about a breach of Article 2 of the United Nations Convention on the Rights of the Child—the right to equal treatment.
The crucial disadvantage of this practice is that under Section 17 the local authority is not subject to the duties in Sections 22 and 23 of the Children Act and the associated regulations, which prescribe the duties of social services departments in respect of "looked after" children, including the duty to review their cases and/or apply the leaving care provisions.
If a young person is accommodated under Section 20, this additional support is mandatory depending on the assessed need. There cannot be many children or young people who need accommodation because they are no longer able to live with their families, yet do not need the support and protection laid down in those sections of the Act.
It would be unwelcome if the Government's proposal were interpreted by local authorities as giving official approval to a practice that is unlikely to meet young people's needs and that may leave them exposed to significant risk of harm. The practice already occurs, and it is largely fortuitous that it has not been exposed to judicial review. It is the view of all stakeholder organisations that it should be discouraged rather than supported by the Government, unless there are positive reasons to opt for not supporting a child who is estranged from his family environment.
In such cases action should be taken to confirm whether the young person is entitled to welfare benefits. We drafted Amendment No. 109 to clarify that the amendment to Section 17 relates to the provision of housing for children with their families rather than making any reference to children who are and indeed should be accommodated under Section 20. I beg to move.
6.15 p.m.
Earl Russell: My Lords, I support the amendment. I happened to attend a meeting this morning to discuss the Nationality, Immigration and Asylum Bill to be debated tomorrow. Under the Government's
amendment which we carried at recommital, the Government retain an obligation to support children but not their parents. Those advising us pointed out that that will involve splitting up families in the way argued by my noble friend Lord Clement-Jones.
Since then I have read the report of the Joint Committee on Human Rights published today, discussing that amendment. It makes the same point: that it will involve the splitting up of families. The Joint Committee expressed the opinion that, if that happened, it would be likely to be a breach of Article 8 of the European Convention on Human Rights on respect for private and family life. If that is true in the one case, it is possible that it might be true in the other. If the Government do not accept the amendment, they may be taking a greater legal risk than they would wish.
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