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I was interested to hear what the noble Lord, Lord Ramsbotham, said about complaints in a prison. I used to know a sales manager at a large hotel group, who always said to me that a complaint is an opportunity, not a threat. When she got a complaint, she always dealt with it so generously that the complainant became a devoted customer of that hotel chain for the rest of his life. If you make advocates more generally available and easily accessible to children, you will get more complaints. Currently, there are complaints under the surface, which people are not making because either they do not know that an advocate is there to help them to make it or they are reluctant to make the complaint because of the

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relationship with the people who look after them day to day whom they might be complaining about, as I hinted earlier.

Does what the Minister said about IROs mean that an IRO can require the local authority to provide an advocate for a child in a particular situation if the IRO feels that that is the only or even the best way of helping that child to get its wishes and feelings over? Does that apply to any change in the child’s care plan? Perhaps the Minister would like to write to me about that.

Lord Adonis: I need to take further advice on the word “require”; the IRO can certainly recommend. If I can come back with further encouragement, I will do so.

Baroness Walmsley: I would be most grateful for a letter on the subject. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2.30 pm

Baroness Barker moved Amendment No. 70:

(a) all the information relating to his personal history;(b) all relevant information relating to his family history.

The noble Baroness said: I have not troubled the Committee with my views until now, principally because I have been involved in other, more complex matters on a different Bill. I have followed the proceedings and read many of the arguments that have been put by noble Lords on all sides. They are about recognising the effects of care on people throughout their lives. This amendment falls squarely within the purpose of the Bill.

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I ask noble Lords to imagine three scenarios. The first is that you, as an adult, sit in a room at a desk opposite someone who has a file, in which they have information that you do not know. That information is your identity and they will not let you see it because they cannot, or they think that they cannot. The second scenario is that you, as an adult, have written to the authority that cared for you when you were a child and you receive in your post one day a letter that tells you something that you have never known before—the name of your mother. The letter says that it can tell you that because she is dead. The third scenario is that you go as an adult to see the voluntary organisation that looked after you when you were a child. You sit down with the people there and talk to them about the fact that you need to piece together various bits of information in order to understand your identity and what happened to you as a child. They say, “I understand that. This is a very difficult issue for you. Here is someone who helps lots of people who are in your situation, and we will sit with you while you read through this file. We will talk to you now, and we will remain in contact with you in the future. You can talk to us at any time about how you feel about what you have learnt”. I did not invent any of those scenarios; they have all happened to people. That is why this amendment stands as it does.

Requests from adults who were in care for information about records of their childhood are retained by local authorities and governed by the Data Protection Act. That Act is rather clumsy and difficult; it is frequently interpreted in vastly different ways, some of which I have just outlined, by different authorities. It presents particular difficulties for people who were in care, because it draws a distinction between what is regarded as personal information—data that relate directly to that person—and what it calls third-party information. Crucially for former care adults, third-party information is frequently deemed to include the names of the other people in their family—their parents and their siblings. That means that when former care adults apply to find out information about themselves, they can be given the barest information: “You entered care on this date. You left care on the following date”. Crucially what it does not tell them, apart from their identity, is their family history—key things that people want to know, such as who they are, what their identity is and, principally, why they ended up in care and why this happened to them. There may be very good reasons why it happened, but the adult is not always allowed to know.

A survey was carried out in 2005 by Professor Jim Goddard and Julia Feast, who works for BAAF. Their report, A Childhood on Paper: Accessing the Child-care Files of Former Looked After Children in the UK, shows the problems with the Data Protection Act and its different interpretations, which make it difficult for professionals to know what they are and are not allowed to say and for the former care adults themselves to get information that the rest of us would take for granted. For other people who have been in different types of care, legislation has long recognised this problem. People who are adopted can now find that personal information, as can people who are in permanent fostering arrangements.

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There is case law on this matter. A primary example is the Gaskin case, which went to the European Court of Human Rights. If anyone wishes to understand quite how gruesome the implementation of current policy can be, I recommend that they read the dreadful case of Graham Gaskin. That is the legislation to which the Government currently cling. I am glad to say that many of the charities now do not. Many of the charities that were the big providers of care have long since realised that they have an ongoing duty to the people for whom they cared often a very long time ago. They have a policy of giving people whole, open access, with support, to their care records. The problem is principally with local authorities.

This is a subject that the Minister and I have discussed several times. We often come back to the fact that many of these records no longer exist. Local authorities’ children’s homes have been reorganised many times in the period to which we are referring. Records disappear. They get chucked out in filing cabinets. This amendment is not an attempt to conjure up information that no longer exists, but it asks for a standard of service to be provided by authorities, even in cases where information does not exist, whereby people who seek information are treated properly and with respect. People can come to terms with the fact that their records no longer exist, but they do so better if somebody sits them down and tries to explain to them how that came to be, rather than if they simply receive a letter to that effect in the post.

This amendment would not require more resources, which is crucial in view of some of the discussions that we have had. It would not require authorities to hire anybody else or to set up any expensive new system. It would simply require them to have a policy of openness; it would place a duty on them not only to maintain their records but to make those records open to those who wish to inspect them. It would also bring all bodies up to the level of the best because it would allow voluntary organisations and statutory authorities to transfer information. Former care adults will often find that they were in care in different places at different times and a frequent stumbling block is that one organisation will tell them what happened to them and another will not or cannot.

The amendment would give people the right to have information relating to them and to their family history. It contains a provision, similar to the one that pertains in adoption law, that if it would be dangerous to give that information to an individual, the body has the right to refuse. That is a form of protection that authorities need to have because some of the people whom we are talking about go on to lead very disturbed and chaotic lives. Revealing some of that information to them might lead them to seek some kind of vengeance. In that case, there is a power of discretion. The amendment does not specify how, but it would require authorities to carry out this service in a sensitive and meaningful way. It is not appropriate to give people letters containing the most important personal information. I hope that the

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Minister will look favourably, this time, on a small but highly significant matter to thousands of people, some of whom are now very old. I beg to move.

Lord Hylton: In his reply, will the Minister say whether some of this information could be made available under the Freedom of Information Act? That may be a theoretical possibility, but it would not surprise me if it is not known to the people who could benefit from it. On those grounds, it is probably wise and desirable to incorporate something of this kind.

Lord Adonis: I fear that my response to the noble Baroness will be the same as the one that I gave the last time we debated the issue. The Government’s position has not changed. We believe that the appropriate statutory framework already exists to ensure that adults who were looked after can access their case records. First, there is already an obligation to keep records. Regulation 8 of the Arrangements for Placement of Children (General) Regulations 1991 already requires local authorities and voluntary organisations to open a case record for each child whom they place. Details of what must be kept are set out in Regulation 8(2) and amplified in guidance. Local authorities are already required to retain records for 75 years after the date of birth, or for 15 years after death if the child dies before the age of 18.

Secondly, there is, as the noble Baroness said, existing entitlement under the Data Protection Act for adults who were in care to have access to the personal data in their records. As she said, information relating to other persons must be handled in accordance with the principles of the Data Protection Act, and there is room for the exercise of discretion by the local authority to disclose information relevant to the individual’s understanding of the issues that they face because of their experience of being looked after. There is also provision for individuals to apply to the Information Commissioner if they are unhappy with the local authority’s response.

There will, of course, be individual cases of adults who are trying to piece together information about their time in the care system several decades ago and who cannot do so because the records are incomplete. Sadly, no new legislative provision can address that. I say this with some feeling as a former child in care whose entire records over 13 years in care were destroyed when I sought to gain access to them. I am not one of the very old category of people in care whom the noble Baroness mentioned, but, alas, that is the past. I am glad to be told, however, that record keeping is now more consistent and the guidance clearer than it was in previous decades, as the Children Act 1989 set a better framework than existed previously.

The integrated children’s system to which I referred yesterday and the detailed resources that have been produced to support it aim to improve record keeping still further. The ICS covers all children who are looked after, including those who are placed for adoption. I know that my response will not satisfy the noble Baroness, but I hope that it at least testifies to improved practice in this area.

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Baroness Morris of Bolton: It would be hard not to have some sympathy for this amendment. Who could argue with the noble Baroness, Lady Barker, that people should be treated properly and with respect? Could at least that aspect be taken up in training so that, whether the information can or cannot be given, it is done with sensitivity?

Lord Adonis: I absolutely accept that. I understand that it is covered both by guidance and by the ICS. The noble Baroness is absolutely right about the difficult and often traumatic experiences of former looked-after children as they seek access to records that are or are not available; she is right that they should be given proper personal support. That is covered by guidance. It is, as I found myself, the practice of good local authorities and it should become universal practice.

Baroness Barker: I thank the Minister for his response. It is as I rather imagined it would be. One reason why I keep returning to this matter again and again is to make the point that the guidance and the existing statutory framework are not working. There is a huge variation between departments. The Minister talked about the use of discretion around personal data. What scope do local authorities have to exercise discretion? What can they say and what can they not say? It clearly varies from authority to authority. The Minister said that there is guidance, but there is huge variation: people in one local authority are invited in and given sessions with trained social workers who talk them through the difficulties and the fact that their records have disappeared, whereas people in the neighbouring authority get a letter. Clearly the guidance is not working. I do not imagine that the Minister will change his mind, but I wonder whether he will accept that there is a need to review the way in which the current guidance is being implemented to see whether it can be improved.

2.45 pm

Lord Adonis: Because of the revisions that we have undertaken to make to guidance under the Children Act, we will review that. I will personally ensure that we take account of what the noble Baroness has said as we review it next time around.

Baroness Barker: I thank the Minister for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 and 72 not moved.]

Baroness Sharp of Guildford moved Amendment No. 73:

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The noble Baroness said: I will also speak to Amendment No. 101, which is in my name and that of my noble friend Lady Walmsley. The purpose of the amendments is to enable children in care to appeal in their own right, first, in Amendment No. 73, to the Special Educational Needs and Disability Tribunal and, secondly, in Amendment No. 101, against a placement move.

On Amendment No. 73, the Bill does not address the issue facing those looked-after children with special educational needs who wish to appeal to the special educational needs tribunal, SENDIST. Currently, children in care do not have anyone who is sufficiently independent from the local authority in a position to act for them in tribunals. Therefore, they are being denied access to appeals. This is a significant issue for looked-after children, because almost a third—28 per cent—have a statement of special educational needs, compared with just 3 per cent of children generally. Looked-after children with special educational needs are even more vulnerable and have considerably poorer educational outcomes than other children with special educational needs. There is all the more reason, therefore, for them to have a proper assessment of their needs.

Yet the evidence shows that local authorities often fail children with special educational needs in a number of ways. They refuse to make statements or make inaccurate statements with vague or misleading information about provisions that they are legally obliged to provide. They also make bad school placement decisions. Without adequate recourse to SENDIST, those problems are compounded. As things stand, however, looked-after children have no proper recourse to SENDIST. The Government recognise that the situation needs to be addressed. In the Care Matters White Paper, they promised to,

While those measures represent a step forward, they are not an effective solution to the problem. The proposal for revised guidance seems to imply that it is required only for foster carers and does not address the needs of children placed in residential care. There is a real problem here. To challenge decisions by a local authority, the authority itself would need to go to the tribunal and, depending on the complexities of the case, invest in alternative professional opinions or reports to challenge decisions that it had already made. Again, the reference in the White Paper to independent reviewing officers advising carers is a helpful start to increasing the viability of tribunal appeals in relation to children in care, but alone it will not make more funding available or compel an appeal to be brought.

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Clause 17 introduces a statutory requirement for a designated member of staff for children in care. This is a welcome step, which will, I hope, lead to earlier and quicker identification of children in care with special educational needs and to better record keeping and evidence gathering in relation to statementing. However, such individuals would not have rights to appeal under the current system. If they considered that a child needed a statement or that the contents of a statement needed to be appealed, they would need to refer the matter back to the social services department. In addition, such teachers will be employed by local authorities and will still lack the level of independence that would ensure that appeals were brought where necessary.

We move the amendment on behalf of the Children’s Society. It believes that looked-after children with special educational needs in residential care should be granted an entitlement to appear in their own right, as is the case in Scotland for young people aged 16 and 17. In addition, it believes that those children should be granted a statutory right to independent advocacy to support them in doing so.

Amendment No. 101 also relates to the child being able to appeal in its own right. The purpose is to enable application to the court for Section 8 orders in relation to children in care. One of the most frequent issues brought by children and young people to independent advocacy services relates to their being moved from placement to placement when that is not in their care plan and is against their wishes. Clause 10 provides the need for review before children are moved to alternative accommodations, but we do not believe that that offers strong enough protection. We would like to see a new legal provision that permits children with sufficient understanding, and others, to apply to the courts to prevent a placement move. We believe that that could be done through an amendment to Section 8 of the Children Act 1989, allowing children to seek leave to the court to apply for a Section 8 order. There are four types of order: a contact order, a prohibited steps order, a residence order and a specific issue order. It has always been an anomaly that these orders cannot be made in respect of one of the most vulnerable groups of children in society—looked-after children. The amendment would extend that right to those children.

The amendments are wholly consistent with what children and young people have been saying to the Children’s Rights Director for England and they very much reflect the advice that Dr Roger Morgan has been giving on these matters. I beg to move.

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