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Baroness Barker: My Lords, the luck of the noble Lord, Lord Northbourne, has not rubbed off on this side of the House. I take heart from what the noble Baroness has said and we will be extremely vigilant when the regulations arrive. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland moved Amendments Nos. 27 to 29.
Page 8, line 20, after "description" insert ", not including medical records or other personal records,"
"( ) as to the length of time for which information must or may be retained;"
Page 8, line 35, at end insert—
"( ) as to procedures for ensuring the accuracy of information included in any such database;"
On Question, amendments agreed to.
Baroness Ashton of Upholland moved Amendment No. 31:
"( ) the giving of advice in relation to rights under the Data Protection Act 1998 (c. 29);"
On Question, amendment agreed to.
Clause 16 [Joint area reviews]:
Clause 24 [Information databases: Wales]:
Baroness Ashton of Upholland moved Amendment No. 33:
On Question, amendment agreed to.
Earl Howe moved Amendment No. 34:
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendments Nos. 36 to 39:
Page 19, line 20, after "description" insert ", not including medical records or other personal records,"
"( ) as to the length of time for which information must or may be retained;"
Page 19, line 35, at end insert—
"( ) as to procedures for ensuring the accuracy of information included in any such database;"
Page 20, line 29, at end insert—
"( ) the giving of advice in relation to rights under the Data Protection Act 1998 (c. 29);"
On Question, amendments agreed to.
Clause 45 [Ascertaining children's wishes]:
Earl Howe moved Amendment No. 40:
The noble Earl said: My Lords, in moving Amendment No. 40, I shall speak also to Amendments Nos. 41 and 42. I was extremely appreciative that on Report the Minister tabled what is now Clause 45 to ensure that children's wishes will be taken account of whenever a local authority is considering providing services to a child.
I should like to press the Minister further. Ascertaining a child's wishes lies at the centre of good practice for all the reasons the Minister gave when introducing her amendment. Indeed, it is a concept that underpins a great deal of what is in the Bill. Wishes though are often only a part of what a child has to tell us. Young children and disabled children in
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particular may not be able to articulate their wishes in a measured and coherent way. Sometimes even older children will not be able to do so.
On the other hand, virtually all children will invariably be able to say how they feel. Feelings of anxiety, fear, anger, love, loathing and uncertainty in a child are quite different from a wish that a child may express for this or that particular thing. General feelings of this sort are often just as relevant in arriving at a decision on how a child might best be helped. It is no surprise that the conjunction of feelings with wishes features in a great deal of legislation relating to children. I think particularly of the Adoption and Children Act 2002, but there are a number of other important examples; for instance, Sections 1 and 22(4) of the Children Act 1989.
The reason for that is perfectly straightforward. In many situations it is simply not possible to reach a conclusion about what may be in a child's best interests until you find out what the child is feeling. This is far from being a semantic point; feelings and wishes are distinct, not only in ordinary language but in legal terms as well. I believe that it is right to add the word "feelings" into Clause 45 if we are going to do justice to the intention behind it.
I turn to the remaining amendment in this group. On Report, a number of noble Lords tried to press the Minister to carry forward the principle she very helpfully recognised in relation to Section 17 of the Children Act 1989 to Section 47 of that Act. I should like to do so again because, unusually with the Minister, I was not and am not convinced by the arguments that she put forward for resisting the proposal, either when she spoke on Report or in her subsequent letter to me, for which I was very grateful.
In her letter, the Minister explained that she did not think it appropriate to create a statutory duty to seek the wishes of the child when a local authority is considering whether to take action to safeguard a child's welfare. She argued that the time to consult a child is not when a local authority is considering whether to take action, but after that when it is considering what action to take. At that point, one of three possible sections of the Act might apply, including Section 17, and in all of those situations ascertaining the child's wishes would be mandatory.
We need to be careful in discussions of this kind that the larger picture and the larger issues are not buried by somewhat rarefied arguments. If you ask most people why Victoria Climbié was not rescued by the authorities, I suspect one reason would feature more than any other, which was that no one actually spoke to her. Let us be clear: Victoria Climbié fell squarely into Section 47 territory. The bruises and burns on her body had been noticed, and a number of people were debating what ought to be done. When Victoria's carers were approached, the questioners were fobbed off, and no action of any kind was taken. Nearly all the high profile child death inquiries of the past few years concern children under the age of 10. One of the most consistent themes in inquiry reports is the complete invisibility of the child's wishes and feelings.
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It simply is not right to say that whenever a local authority goes through the Section 47 process and then decides to take action, Section 17 will be triggered or may already have been triggered. Frequently, an assessment under Section 17 is bypassed altogether. It is certainly bypassed in many instances when a child is thought to be seriously and imminently at risk. Even in that circumstance, are we really going to say that when a child is about to be removed from his family home, that child should not be part of the decision making? Of course we do not say that, other than in exceptional circumstances. All the literature emphasises how important it is that the child is spoken to, yet time and again when it really matters, that does not happen.
I know that the Minister is concerned that there should be some discretion open to a local authority. The amendment that I have tabled allows for the possibility that it may be impracticable to speak to a child, in which case there would be no legal obligation to do so. In most cases, where a child's welfare is in question, we ought to be saying that it should be a sine qua non for the child himself to be seen and listened to. That is not a change to the guidance; it is a strengthening of the guidance. I hope that the Minister will reconsider the issue. Out there, I simply do not think that it would be understood if an amendment such as this was not made. I beg to move.
Lord Elton: My Lords, I speak only in order that my silence will not be taken as anything other than absolute agreement with everything that my noble friend has said.
Baroness Walmsley: My Lords, I have added my name to all three of the amendments in this group. The Minister gave us the impression that she feels that the guidance is working well, when we spoke about that on Report. The noble Baroness, Lady Andrews, quoted research into the impact of the assessment framework introduced in 2000, and she said:
"All the evidence suggests to us that the participation of children in that period has increased and is working well".—[Official Report, 24/5/04; col. 1059.]
Unfortunately, the research referred to and published last year only included the views of eight young people. The summary report noted,
"Their views and experiences, however, mirror previous research findings and suggest that social workers continue to experience difficulty in ensuring children and young people fully participate in decisions that are likely to affect them".
The Minister also expressed concerns about situations in which a child might be in danger, and obviously we all support her in those concerns. She said:
"Where there are urgent concerns we believe that the child's safety must remain the overriding and absolute consideration and social services, or whoever, need to act and act swiftly. We are concerned to ensure that that is paramount".—[Official Report, 22/6/04; col. 1223.]
Section 47 is not restricted to questions about the child's safety, but whether the child is suffering, or is likely to suffer, significant harm. Where the child's immediate safety is of concern, as the noble Earl, Lord Howe, has just mentioned, the amendment does not prevent a local authority taking immediate action
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to protect it. As regards Section 17, the Minister also argued on Report that it was likely that many children in those situations would be found to meet the Children Act 1989 definition of children in need and that the amended Section 17 would be applied to them in any case when immediate safety issues have been addressed. Section 17 provides for the provision of services to children in need. A child protection investigation is the decision-making process that comes before the provision of any services to the child. So children will be covered by the Clause 45 amendment to Section 17 only if they are seen to be in need of services. It does not cover the child protection investigatory process itself before the services are provided or help children who are deemed not to be in need. For those reasons, the noble Earl, Lord Howe, and I have retabled the amendment.
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