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May I mention one or two matters that are absent from the Bill which might have been considered? One is what I call the green-baize-door problem. That was the term used by judges—I was a family judge for many years—to describe the frustration that the court feels when making a care order and knowing that there is practically nothing that the court can do to

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supervise what happens to the child from that point on. The child goes beyond the green baize door into the care of the local authority. Of course, there is a geometric logicality about all that. Once you have a system that Parliament has endorsed giving authority to certain bodies and you entrust those bodies with carrying out that statutory authority, there is a strong case for saying that you should not be allowed to interfere. That is exactly what this House said some five years ago in a case called Re S, where there was an attempt, as many Members will remember, to bring in a system of starred milestones whereby the court would be able to check now and then to see exactly what was happening. However, the House reached the only decision available in the circumstances and came to the inevitable conclusion that it could not allow it.

The powers of the independent reviewing officer, who is not all that independent if he comes from the local authority, have been strengthened and the officer is given duties in this Bill in addition to those in the 2002 Act. Although that is a valuable function, it does not come anywhere near a court having authority over that child in certain circumstances. It is not a case of not trusting the local authority, but it might be impossible to foresee exactly how sensitively the local authority would be able to act from time to time in relation to that particular child.

I would also have liked to see short-term care orders considered. Under Section 91 of the Children Act 1989, a care order lasts until age 18. In many cases, of course, care orders are operated for a period of only six to eight months. There is a case for the majority of orders to operate until 18. Indeed, there may be a case for them to go beyond that. Be that as it may, there will be many cases where a court is of the view that there are issues that may take a year, two years, perhaps three years at the very most, to resolve. It will say, “We are not going to make interim orders; that would be entirely wrong. That would be delay for delay’s sake, but it would be proper to experiment with a short-term order. That can always be repealed if wrong”.

Lastly, I mention a matter that does not concern care at all, but I suspect that we shall not be reviewing the Children Act 1989 for a very long time and I take this opportunity to mention it. Section 8 of the Act deals with many matters, including contact. We hear so much about contact being denied to parents and very vociferous campaigns in respect of fathers in many cases but we are not told about the hundreds of thousands of parents who have no desire to have contact with their children. I am not sure what exactly can be done, but I would like to see a very great deal of thought given to this matter bearing in mind that contact—as the Convention on the Rights of the Child says—is the human right of the child.

I appreciate that, whatever we do in this Bill, much more money may be needed. I believe that £300 million is earmarked over four years, whereas in 2005-06 the expenditure on children in care was £2.1 billion altogether, so percentage-wise we are not talking of a vast investment. But whatever we do with our very best efforts I have no doubt that there will still be that huge and, indeed, shameful gap between children in care and children

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who are not in care. It is up to us to use all our ingenuity and commitment in trying to bring about a more equitable situation for the children who are the subject of this legislation.

6.31 pm

Baroness Barker: My Lords, I am indebted to the House for the opportunity to speak briefly on a particular matter. When one is number 15 on the list of speakers, it is always a relief when the main thrust of your speech has not been covered by others. That is why I make this short intervention.

Many noble Lords have talked about the effect which being in care has on the whole of a person’s life. For obvious reasons most noble Lords have focused their attention on 18 to 21 year-olds. I want to go further and talk about the lasting effects of care on former care adults. I am aware that I have previously raised this matter with your Lordships, and I am interested to see that both noble Lords who were Ministers when I did so are sitting on the Government Front Bench. Perhaps that is because access to personal information is not the best subject to raise with the Government at the moment. None the less, it is important.

Former care adults have very limited access to information and their care records. Their care records are governed by the Data Protection Act 1998. Unlike people who were adopted, they do not have a right to access information about themselves. That is because the key information which most former care adults want is the name of their parents and any siblings. Under the legislation and case law—the relevant case law is that of Guskin in the European Court of Human Rights—that information is treated as third-party information. So they are denied official access to the one essential piece of their family story that will enable them to piece together their history and identity. I say that because many of the charities which work in this field long ago recognised the importance of that information to the health and well-being of adults and now have policy whereby they tend to make all information freely available. Many local authorities continue to deny access to adults. That is partly in some cases because of a particular interpretation of the Data Protection Act but in others it is done for another reason that I shall come to in a moment.

Recognising, as we are, the lifetime effects of having been in care, I contend that it is time for the Government to adopt a new policy on this. When we have discussed this matter previously, the noble Lord, Lord Adonis, has fallen back on two arguments. The first is the one I have set out concerning the strict application of the Data Protection Act. The second is the fact that in many cases the information no longer exists because local authorities and social work departments are frequently reorganised. I suggest to the Minister that the fact that the information does not exist is irrelevant because former care adults understand that if they choose to approach an authority many years after they were in care it is entirely possible that their records have been destroyed. But former care adults require sensitivity regarding what has happened to

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them. While they can accept that the information may be gone and cannot be retrieved, how they are told that varies enormously. In some cases, there is extremely good practice where local authorities run a very full, supportive service for anybody who has been in care where they can access counselling and support. Others do not. It is not unheard of for people simply to receive a letter through the post either giving them very personal information or simply telling them that it no longer exists. That is a very inhumane way to treat people who are dealing with the consequences of actions that happened during their childhood for which they had no responsibility.

At later stages of the Bill, I shall want to challenge the Minister to extend the legal framework within which people have rights to access information about themselves and may wish to explore whether there is a necessity to do that via an intermediary body, as is done in adoption cases. I shall also want to challenge the Minister on the extent to which we require statutory bodies not only to hold information but to ensure the continued existence of that information long after they may have disappeared.

6.38 pm

Baroness Sharp of Guildford: My Lords, I join others in thanking the Minister for his very full, comprehensive and thoughtful introduction to the Bill. As the noble Lord, Lord Elystan-Morgan, mentioned, we have had a large number of substantive and thoughtful contributions. As the noble Earl, Lord Listowel, said, the Bill is one of careful gestation. It began more than a year ago with the Green Paper, Care Matters: Transforming the Lives of Children and Young People in Care. The Green Paper was issued with a consultation document, and consultation went on for four months until January 2007. In June the White Paper Care Matters: Time for Change was published, and we now have the Bill.

It is almost an exemplary period of gestation for a Bill, and very different from that of the then Further Education and Training Bill, the last education Bill that we dealt with in this House. There is a great deal in it that many of us have said we welcome. Yet, as the noble Baroness, Lady Howe, mentioned, we have been inundated with briefings from many of the children’s societies, all of them raising worthwhile issues that question bits of the Bill. Therefore, we are likely to move into perhaps more substantive discussions in Committee and on Report than some of us thought when we initially saw the size of the Bill. It may take us longer in Committee than the Government initially think.

From these Benches, there is a great deal in the Bill that we welcome, which was made clear by my noble friend Lady Walmsley. The issues where we have doubts have been echoed around the Chamber in the contributions that have come from all Benches. Perhaps I can pick out some of them and, at the same time, explain some of the reservations that have come up and why we agree with those reservations. I will consider them in the order in which they come in the Bill. Part 1 deals with social work practices. I was

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surprised that this was the first issue that confronted one in the Bill, because in the White Paper it has a relatively low profile. It was raised in the final section of the White Paper as something that might be a proposal in the section on the role of the practitioner, which was to set up pilots to test whether partnerships with external agencies might improve experience in childcare.

We have no objection in principle to developing contracting-out procedures, and we recognise that this accords very much with the Government’s vision of local authorities’ children’s services as commissioners of services and not providers of services. Again, this echoes the feelings that have been expressed throughout the Chamber; we strongly feel that this must be piloted first to see whether it is a viable model that is in the child’s interest. The key issue must be whether it improves the experience of children in care and can improve the experience of multi-agency working and getting the joined-up working together that we have all been looking for for such a long time. A number of questions are raised. The Barnardo’s briefing, for example, asks, if you are contracting out social care, who has the responsibility for being the corporate parent. The Association of School and College Leaders raises the issue of responsibility for the Every Child Matters agenda. Again, is it retained by the local authority, or by contracting it out does responsibility lie with the subcontractor?

We agree very much with those who have said, “Go ahead with pilots, but they must be carefully organised”. We must watch to make sure that they do not cream off the best of the social workers from the local authorities. That point was raised by my noble friend Lady Walmsley. We must not roll them out more generally until there has been a thorough evaluation of the experiment.

The noble Lord, Lord Judd, raised an issue that was also raised in the briefing from the Children’s Rights Alliance, on whether contracting-out provisions mean that the private contractors are exempt from local authority liabilities under human rights legislation. The Children’s Rights Alliance claims that Clause 3(2)(b) seems explicitly to be seeking to exclude private contractors from those obligations. We agree that, on the contrary, the Bill should make explicit provision that, even when local authorities’ functions are subcontracted out to private providers, those local authorities should remain liable to ensure that the human rights of the child are protected.

The second main issue that has had a lot of discussion is placements. There are provisions in Clauses 8 and 9 to ensure much greater stability of placement for young people. Again, one can but welcome that. We have heard stories of the incredible number of placements that some young people have over a very short period. We will seek clarification on what is meant by “near” when looking at schools, and what is meant by “exceptional circumstances” in Clause 9 in relation to moves proposed when a child is in key stage 4. That is important, and we are glad that in Clause 8 the child’s welfare is paramount.

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There are cases where out-of-area placements will be required. This issue was raised by the noble Baronesses, Lady Morris and Lady Howarth, and my noble friend Lady Walmsley. Because of special circumstances, it may be necessary to go out of the area. There are cross-border issues, where it is easier to cross the boundaries of local authorities rather than to go across a county for specialist provision. Our biggest reservation on this is precisely that raised by the noble Earl, Lord Listowel—the availability and quality of placements. Every local authority in the country has difficulty finding good foster placements. It is all very well laying down rules about where placements should be, but that is relatively useless if you cannot find good foster placements. Again, the White Paper gave prominence to trying to improve the number and quality of available placements. Somehow or other it probably does not need legislation, and it gets lost in the Bill. One is looking in the Bill at the question of putting constraints on where placements should be.

In the second section of the White Paper, great stress was put on family and parenting support. The noble Lord, Lord Griffiths, mentioned the National Children’s Home and the impressive statistics of the work that it has done on intensive family support and the preventive strategies that are enormously important to save putting children into care. Probably because it does not need legislation, it does not get mentioned, but it means that when looking at the Bill you get a slightly biased view, and that too much emphasis is on constraints and not enough is on preventive care and how important it is, and we on these Benches in particular would welcome it.

The third issue is the independent reviewing officers and visitors. Here, we follow the line that most people in the Chamber have taken—that it is vital that the independent reviewing officers be independent. We do not agree with the Local Government Association, which argues that they should be local authority employees. The scrutiny function is important, and there should be an independent reviewer. We have nothing but support for the extension of visiting rights for these children and the extension of the role of the visitor. Two issues arise, both of which have been mentioned.

First, there is the importance of including disabled children among those who should have the rights of visiting and befriending, which was mentioned by the noble Lord, Lord Rix. Secondly, children in custody should be included. They frequently badly need ongoing contact with their social workers in particular, where current practice means that is often not the case. Indeed, there are occasions when some social workers have been positively discouraged from visiting their charges in young offender institutions. Therefore, we support the plea of the Children’s Society that all children sent into custody should be regarded and treated as looked-after children.

Finally, the point has been raised that visitors and befrienders are not the same as independent advocates and that there are occasions when independent advocates are required. Many professionals advocate that when children are part of their role, they are legally required also to promote and safeguard the children’s best

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interests, but are often bound by budgets and departmental priorities. They are, in effect, parti pris. Professional independent advocacy is totally different, because being independent of the system is its primary role—working exclusively with the child and ensuring that its views and rights are promoted. We shall put forward amendments to the effect that there should be an independent advocate, as well as rights to visiting.

On education, we totally endorse the idea of the designated teacher, but it is important that that person should not just be a special needs teacher. I am sorry not to see in the Bill the proposals in the White Paper that each local authority should have a children-in-care council, that one of the elected members should be a lead member for looked-after children, and that the director for children’s services and that lead member should provide leadership for the whole authority in relation to looked-after children.

We support the idea of higher education bursaries, but very much endorse those who have asked, “Well, what about further education?”. That is vital. Also, it is important that there should be proper information advice and guidance to these young people about choice of careers—particularly now that in secondary education, given the introduction of the new diplomas, it will become much more difficult to know which way you should go and which vocational diploma to choose. If these young people are not to drop out of school and become part of the NEET group, as many do, it is vital that they get proper advice. We very much endorse the idea of personal advisers and mentors for the 16 to 21 age group, through to the age of 25. Such young people need help with finding and planning their pathway to a career.

I finish with a final plea on a question which, again, does not appear in the Bill—National Health Service participation. There is a lot of talk of partnership, but is the NHS playing the role it should do for looked-after children, particularly given the high prevalence of mental health problems among them—45 per cent compared with 10 per cent in the population as a whole? To what extent are PCTs providing back-up in terms of counselling and therapies that we know can help and are badly needed? The White Paper made much of the importance of addressing these problems across the whole of children’s services, not just education and social services.

The LGA noted in its briefing that primary partner health trusts, PCTs, have to work to a set of objectives established by the NHS, within which the needs of children generally, and children in care specifically, are not usually given high priority. The LGA believes that this is a barrier to improving the outcomes of children in care. It points out that this is not due to any ill will by staff of the PCTs, but rather is a policy gap in the NHS. That point was raised by the noble Baroness, Lady Meacher. Does not the Bill provide us with an opportunity to fill that gap? I suggest that it does and that we ought to be looking at it.

6.54 pm

Baroness Verma: My Lords, I begin by thanking the Minister for introducing the Bill and all noble Lords who have contributed to the debate. Noble Lords with

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far greater experience than I possess have shared passionately heartfelt concerns and I look forward to the Minister’s response. I appreciate the signal being given that the Government have finally taken on board what we on these Benches have for so long been calling for and we very much welcome the legislation, though it is overdue.

The importance of providing for children cannot be overestimated. In terms of governing, caring for the most vulnerable children is an instance where any set of beliefs about equality or opportunity will come directly to bear. This is the point where a just state can begin—by being just. The problem is large and it is one with which your Lordships will not be unfamiliar. Although the information about what happens to children in care and after leaving care is shocking, it sadly does not come as a surprise. We on these Benches join in paying tribute to the noble Earl, Lord Listowel, for his outstanding dedication to championing the needs of the most vulnerable citizens in society, in particular children in care or custody. We have been calling for years for a way to combat the problems associated with children in care and we are thankful that those concerns have finally been heeded. However, I still feel that, as the debate has shown, this legislation needs greater clarity to ensure that we can deliver on the very good intentions that lie behind it. In particular we want to ensure that what drives reform is in the interests of the child. The ambition to try to provide looked-after children with the same opportunities possessed by those who are not is very welcome indeed.

The proposed changes intended to assist looked-after children in education are one step in the right direction. The Bill places a duty on maintained schools’ governing bodies to appoint a member of staff who will be responsible for promoting the educational achievement of looked-after pupils registered at the school. We strongly support the idea of fostering a personal relationship between the child and an adviser. Such relationships lead to success, as my noble friend Lady Morris pointed out in describing the success of Barnet Council’s education champion scheme. However, we still have a few questions about this specific provision.

For example, will the person appointed to be responsible for looked-after children in a school be filling a new role, or will the role be filled by an existing member of staff, perhaps by merging it with that of the special educational needs co-ordinator, as the noble Baroness, Lady Walmsley, mentioned? What consideration has been given to the increased burden that this will place on current co-ordinators, or on local councils if they are expected to appoint someone new? Moreover, has the Minister considered that some children in care might not want to be labelled as such in school? Is there any provision for discretion or mechanisms to maintain a child’s privacy?

Although many of the Bill’s proposals are sound, there seems to be a small degree of one-size-fits-all thinking. As my noble friend Lady Morris said, although it is good to provide mechanisms to keep children in local areas, there is no provision to allow children who may require more specialised care to be moved to appropriate facilities. Children with severe disabilities

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could be marginalised, and I am sure that the Minister will agree that clarification is needed to ensure that that does not happen. Likewise, what about children in custody who were previously in care? Almost half of children in custody were in care at some point in their lives. The noble Lord, Lord Judd, eloquently spoke about that. What will the Government do to improve educational achievement among this group?

This all feeds into the idea that we want a more holistic approach to the needs of the child—whether that means allowing for provision for out-of-council care or trying harder to combat the vacancy rates in the social care workforce. This also bears on the issue of education. Although we recognise the vast distance that must be travelled to improve the educational attainment of children in care, the statistics should not be driving the policy. Educational attainment is perhaps the only measurable standard by which we can see improvement or failure, but we must recognise that if we want the statistics to improve, we will have to endeavour to stop treating children as statistics. That is one of the reasons why we want to try to refocus on early intervention before the child goes into care. Can the Minister assure us that attention will be given to families before care becomes a necessity?

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