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Their Lordships divided: Contents, 105; Not-Contents, 127.

Division No. 1


Addington, L.
Anelay of St Johns, B. [Teller]
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Blackwell, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Butler-Sloss, B.
Caithness, E.
Campbell of Alloway, L.
Cathcart, E.
Chalker of Wallasey, B.
Chorley, L.
Colwyn, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.

18 Feb 2008 : Column 45

Elliott of Morpeth, L.
Elton, L.
Falkner of Margravine, B.
Fearn, L.
Finlay of Llandaff, B.
Fookes, B.
Fowler, L.
Freeman, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Goodlad, L.
Greengross, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Henley, L.
Hooper, B.
Howe of Idlicote, B.
Hylton, L.
Jenkin of Roding, L.
Kirkwood of Kirkhope, L.
Lang of Monkton, L.
Listowel, E.
McAlpine of West Green, L.
MacGregor of Pulham Market, L.
Maddock, B.
Marlesford, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Northbourne, L.
Northesk, E.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Roberts of Llandudno, L.
Roper, L.
Ryder of Wensum, L.
Seccombe, B. [Teller]
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Steel of Aikwood, L.
Stewartby, L.
Strathclyde, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Walliswood, B.
Tordoff, L.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.


Acton, L.
Adonis, L.
Ahmed, L.
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blood, B.
Borrie, L.
Boston of Faversham, L.
Brett, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
D'Souza, B.
Dubs, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
King of West Bromwich, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.

18 Feb 2008 : Column 46

Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Malloch-Brown, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Moser, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rix, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Simon, V.
Snape, L.
Soley, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Hornsey, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.15 pm

Baroness Massey of Darwen moved Amendment No. 11:

(a) a parent of the child, or(b) a local authority foster parent.(a) where the child comes to live with P as a result of an order made following an enquiry under section 47;(b) where the child comes to live with P following an investigation under section 37;(c) where P has secured a residence order or special guardianship order in order to avoid the child being looked after, and there is professional evidence of impairment of the parents’ ability to care for the child;(d) where P has obtained a residence order or special guardianship order arising out of care proceedings;(e) where P is providing accommodation for the child and then secures a residence order or special guardianship order.

The noble Baroness said: I shall speak to Amendments Nos. 11 and 12 and refer briefly to Amendment No. 50. I thank the Minister and his

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team for their correspondence and for returning to these issues on the well-being of children and their care, particularly care provided by relatives and friends. I realise that this has been a bit of a trial but I think that we are getting somewhere and the Government’s approach is helpful. However, my amendments seek to make things even clearer. To illustrate the implications of the amendments, I shall set out a scenario and ask the Minister some related questions. I am to speak at the launch of a grandparents as carers association in March and, while I am not asking the Minister to write my speech, some signposts would be useful.

This scenario is hypothetical but based on fact. A grandmother—it could be a relative or a friend—takes charge of three of her daughter’s children at midnight because the daughter has died of a drug overdose. The children are aged 10, six and two. The father lives abroad and has disappeared. The grandmother has a one-bedroom flat. Her husband died three years ago. She is 59 and works as a clerical officer in a local firm. She is desperately anxious that the children should not go into care but wonders how she will cope financially and how she and the children will deal with their grief over the death of her daughter. She may be confused about child tax credit and working tax credit. She may even have to pay for childcare out of her own budget. She may have to pay for school meals. She will have to buy clothes, beds and bedding for three children. Many grandparents who take over these responsibilities fear all these things. It seems to me that the government amendment relates only to looked-after children, so would these children being taken over by the grandmother have to go into care before she could access any help? This is the crux of my concern. Would these children have to go into care?

The definition of a local authority foster parent in Section 22C(12) has its problems because a local authority foster parent must have been approved for the purposes of placement. The approval requirement is logical and welcome but approval takes time and it seems from the drafting here that a child may need to be placed elsewhere while the relative or friend is being assessed. I recognise that Section 23(3) allows a placement under the 2002 fostering regulations, which allow the placement of a child with a relative for up to six weeks with limited checks. Does the new definition imply that children being placed under Regulation 38 could not be placed under Section 22C(6)? If provision under Regulation 38 is no longer allowed, the child might have to be placed elsewhere during the assessment process, which is clearly contrary to the best interests of the child. If placement were permissible during assessment, are family and friend carers entitled to the fostering allowance? What happens to the grandmother whom I have described?

A recent ombudsman’s case in Dudley stated that kinship carers should be paid from the start of their assessment. In any case, evidence shows that six weeks is in practice a short time and few authorities manage such an assessment. Could the regulations not extend the period to 12 weeks to make the system more workable? Section 22C(5) contains the words “in their

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opinion”. Is this sufficiently evidence-based? Would it not be better to have, “the placement which they consider is the most appropriate, having regard to their duties”? I think that Section 22D also needs another look; I know that practitioners find this confusing. There could be a case for saying that any change of placement should be made only following a review, except in emergencies, but that is not what is here or in the government amendments.

Let me return to the grandmother whose hypothetical case I described at the beginning. All this potential confusion applies to her. She is trying to avoid the children going into care, with all that that implies. She needs financial assistance, housing assistance and emotional support. She will be distressed and concerned for the children, and the practitioners dealing with the case may be confused. All of them, but especially the grandparent, need clear and accurate information, which is what proposed new subsection (3) of my amendment asks for. Having a named person in every local authority who can co-ordinate support is essential and I know that some authorities do that. I am not seeking a full-time post, just someone who can step in from day one knowing what to do.

I have one further question: will this legislation link to the new drug strategy? I declare an interest as chair of the National Treatment Agency for Substance Misuse. Many relative and friend carers are carers because of substance misuse and I hope that what appears in the Bill will be picked up in other government policy.

We have said before in Committee that a family group conference, as in Amendment No. 12, is essential to ensuring that the child’s best interests are looked after. Insecurity for children is a terrible thing. I know that in this House we are all trying to do the best for children, which is why we are spending so much time and effort on redrafting. I look forward to the Minister’s response and I thank him for the steps that have been taken so far. I am grateful to the Family Rights Group and to other organisations that take very seriously their concern for children. I beg to move.

Baroness Howarth of Breckland: I support the amendment, particularly in relation to payment for kinship care. I have had huge experience of the wide variety of practices between local authorities in determining whether certain family members should be made foster parents. There are criteria in all local authorities for their particular fostering schemes, which are obviously made for stranger foster carers. Some local authorities apply those same standards to kinship care, where there are clearly different criteria. The physical amenities may not be the same as you might be looking at in a stranger situation, but the children concerned will be used to what their grandparents are able to provide. We recognise that the emotional security that they will be given will be far greater than any material gain but what is important is that the welfare needs of the children are met. Therefore I agree with my noble friend Lady Massey—I am not sure whether I am allowed to call

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her my noble friend as she sits on a different Bench, but I will do so—that it is vital that we pay grandparents appropriately right from the beginning of the child’s sojourn with them.

I recognise that there is an issue about whether the state should interfere in family life and that there are certain circumstances in which families will wish to care for the children who have come into their care without necessarily being given financial or other assistance. Those families simply will not ask for it. I became the unlikely founder of the All-Party Parliamentary Group for Grandparents and Extended Kin, simply because I listened to the stories of dozens of families who from the heart told of losing their grandchildren to stranger foster parent placements because they did not met the criteria of the local authority; and yet they cared deeply and passionately for their grandchildren. I think that the Government want to prevent that happening where they can give appropriate care, but to do so they need to make sure that there is emotional and financial support at the right time. Therefore, I support the amendment.

Baroness Greengross: I too support the amendment of the noble Baroness, Lady Massey, because I have met so many grandparents and members of the family who are not perhaps directly blood-related but who take on this task. They sometimes do it when children are presented to them at the most inconvenient times of the day or night because they are desperately keen to look after the children and stop them being taken into care.

The noble Earl, Lord Listowel, and the Minister talked about the shortage of social workers in some areas, the fast turnover and the use of agency staff. When money is very short and the social workers are not terribly knowledgeable about the children that they are working with, there is a risk that it is very convenient just to say, “Thank goodness; these children are now with the grandparent or relative and we don’t have to bother about money here. We are okay; we can leave them with these relatives”. Stories such as the hypothetical case mentioned by the noble Baroness, Lady Massey, and the many real cases that many of us know of, demonstrate the horrible difficulties and problems that many grandparents and relatives face, particularly with severely disabled children or children who have suffered a great deal and have had a lot of problems in their lives.

There really ought to be presumed suitability in the case of a relative, who has to be shown not to be suitable, rather than the other way round. For that reason, I strongly support the noble Baroness.

Baroness Hollis of Heigham: My name is on this amendment also. I should like to ask my noble friend some financial questions that I suspect he might be predicting. What financial help would be available to the grandparents, as outlined by my noble friend Lady Massey? At the point at which children come for an extended stay grandparents will need some lump-sum money for bunk beds, bedding and above all clothes and all the other things that they will not have. That should mean that they ought to have

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access to and be eligible for a lump-sum payment from the Social Fund—a community grant. I bet that they do not get it. They certainly should. Can my noble friend confirm whether they will be eligible? I realise that this spills over into a different department; none the less, if he cannot answer today, perhaps his officials can write to us. Are such grandparents eligible for a lump sum—£1,000, £500 or whatever—to meet the immediate financial needs of the children?

Secondly, the grandmother will probably be in her later 50s, will probably be in work and will have to stop work. What access to an income in lieu will she have if she takes on the children under the scenario of my noble friend? While she was in work national insurance payments were being made towards her pension. Since 2003, as a foster carer, she is automatically eligible for a national insurance contribution towards her pension; but by being a good grandmother and taking on these children, without that status, is she now sacrificing some of her eligibility towards a pension? I suspect that she is. She should not be and we should do something about it.

Thirdly, in terms of an income in lieu, will she get income support as well as financial support for the children? Almost certainly not, if she has a spouse who is in work, even though the children will impose an additional financial responsibility. Fourthly, will the grandparents get guardian’s allowance? That allowance was designed for physical orphans. These children may be moral orphans or semi-orphans. This is now a responsibility of HMRC. The grandparents should be eligible for such an allowance; will they get it? I doubt it, but they ought to. Will my noble friend take it up?

A fifth element of financial support should be available—the childcare tax credit—which, if those children were being cared for by the next-door neighbour, would be paid to that neighbour. If they were being looked after by the grandparent, the grandparent almost certainly would not be paid. Can my noble friend confirm that the grandparent who should get that money probably is not getting it but probably ought to?

5.30 pm

Finally, there is the childcare tax credit. That is a supplement to income which normally follows the child benefit book and which may take up to six weeks to materialise. If we are dealing with a long stay with grandparents, that may be fine but if children are staying six weeks there and six weeks back with their parents until the relationship breaks down for whatever reason—addiction, poor mental health, or whatever—then childcare tax credits or child tax credits can almost never catch up with the rights and the needs of the grandparents.

Potentially, there are five or six streams of income which ought to be available to grandparents, ranging from a lump sum from the Social Fund, to national insurance protection for their pension, to guardian's allowance, to income support, to childcare tax credit and to child tax credit itself. In my view, grandparents ought to be eligible for each and every one of those,

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except in so far as they are overlapping benefits. I bet they do not receive any of them. Therefore, I ask my noble friend to take away the issue of financial support for grandparents, particularly in the very difficult situation where the children may fluctuate between parents and grandparents. We know that grandparents will hang on in with children who may be difficult, disturbed or challenging as a result of their parents’ experience in a way in which foster parents may not. They may be the only source of stability to see those children through to responsible adulthood.

Baroness Butler-Sloss: I too strongly support the amendment of the noble Baroness, Lady Massey. As the incoming president of the Grandparents’ Association, I support the comments made by the noble Baronesses, Lady Hollis and Lady Massey, about grandparents.

I want to alert the Minister to a totally different group of people. I mentioned this factual example in Grand Committee. A middle-aged woman, who has grown-up children, is a friend of a young woman who has taken to drink and drugs. Her little girl, who has been befriended by my friend, is in grave danger because of her mother's inability to cope because of drink and drugs, so my friend is asked by social services to take the child home and look after her. She is not related to the child or to the mother, but she takes on the child. She was prepared to be a foster parent but was persuaded not to be; she was persuaded to take a residence order which the local authority and the mother supported; she was persuaded not to apply to be a special guardian; and she was told a few days before the hearing that she would not receive any maintenance for the child because she did not come within the requirements of the local authority. I know that she is receiving, and has not questioned it, a relatively small sum of money to help her with childcare so that she can keep her job. The money can be stopped at any moment because she has not been told why she is getting it or for how long and it is not the foster carer’s amount.

If that can happen to her, how many other women or men in this country take on the care of a child at the request of a local authority, are pushed down the residence route only to find that although having a residence order with the support of the local authority they will not receive a penny? That is why this amendment is so very important. It seems to me that subsection (2)(c), which states,

is exactly the position of my friend. Paragraph (e) states,

My friend comes under both of those paragraphs. The current government amendments, which seem to me to be admirable as far as they go—I strongly support many of the government amendments tabled which are very thoughtful—do not cope with grandparents or with those who take over the care of a child, get a

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residence order and are then left without support which puts them in danger of not keeping their jobs and going on to social benefit. Is that what we want? This is a very sensible amendment and I hope that the Government will consider it seriously.

Baroness Sharp of Guildford: I want to express the support of these Benches for Amendments Nos. 11 and 12. We have spoken at some length now on Amendment No. 11 and about grandparents. I am very pleased indeed that the noble and learned Baroness, Lady Butler-Sloss, has made the point that others, including family and friends, are involved here. Often in an emergency they take on responsibility for a child, they take them into their homes, look after them and because they are not officially looked-after children in the eyes of local authorities, they receive no remuneration whatever.

This is a similar amendment to one that we tabled in Grand Committee. On that occasion we were trying to extend the definition of “in need” in Section 17(10) of the Children Act 1989. This amendment is more straightforward, as the noble and learned Baroness, Lady Butler-Sloss, has pointed out. It seems to us that subsection (2)(a) to (e) sets out very well the circumstances under which the person concerned is seen to be de facto the carer. It is a very sensible way of tackling the obvious inequality and we support the amendment.

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