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First and foremost, subsection (7) requires that all the considerations, whether to do with proximity, out-of-area placements or any other consideration, should be taken in accordance with the local authority’s other duties under Part 3 of the 1989 Act, in particular its duties under Section 22 to safeguard and promote the child’s welfare and to ascertain and give due consideration to the child’s wishes and feelings and those of other relevant persons. This brings together into a single test the separate tests set out in existing Clauses 7 to 10. We believe that this is the correct way to ensure that placement decisions are made in the child’s best interests as set out in Care Matters. It also reflects the views expressed by noble Lords when we debated this issue in Grand Committee.
Noble Lords commented in particular on the duty in Clause 8 relating to placing children within a local authority’s own area and to the different test that would apply in that case from the other tests set out in Clauses 7 to 10. The new clause applies a single consistent test; namely, that any decision and consideration of all factors relating to it should lead to the most appropriate placement that safeguards and promotes the welfare of the child in question. I stress that it is not sufficient for a local authority placement simply to be consistent with a child’s welfare. Under the clause as now drafted it must be the most appropriate placement that safeguards and promotes the child’s welfare. We believe that is the right position for the law to take.
However, the placement options under the new clause are unchanged. They include, first, placement with a relative, friend or other person connected with the child. We recognise that placements of this nature may not in every case be in the interests of the child. However, the law should encourage local authorities to consider the use of family and friends placements first. It is important to make clear, as the clause does, that children in this position should continue to be looked after by the local authority. The carer must be approved as a local authority foster carer and must be provided with support, including financial support, in accordance with the criteria that apply to all other foster carers. That meets the point that also caused
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The local authority must also ensure that, as far as is reasonably practicable and in line with its overall duties that I have described that apply under the 1989 Act, the placement allows the child to live near his home, does not disrupt his education, enables the child to live with a sibling who is also being looked after by the local authority and, if the child is disabled, has accommodation suitable to his needs. An additional requirement is set out in subsections (7)(c) and (9) which the local authority must observe: it must accommodate the child within its area unless that is not reasonably practicable. However, I stress that that is subject to the overriding duty under the 1989 Act to promote and safeguard the welfare of the child.
As we have made clear in previous debates, the Government are committed to reducing the number of inappropriate out-of-authority placements, hence these new provisions. There are concerns about the quality of placement supervision, the co-ordination of services for children placed out of authority and the poorer outcomes for this group, hence the changes we are making under new subsection (9), although we are continuing to look at whether there should be a further explicit provision requiring local authorities effectively to plan to have a range of local accommodation available alongside the new provision, which responds to the concern raised by the noble Earl, Lord Listowel.
Clause 9 introduced a new duty to place a child near to his school, preventing unnecessary school moves, with particular significance attached to school moves in the run-up to GCSE, when the impact on educational attainment is perhaps most significant. In response to concerns raised in Grand Committee about the definition of a school and whether it embraced a further education establishment, in new Section 22C this requirement has been rephrased as a duty to ensure that placements do not disrupt the child’s education. The advantage of this approach is that it is not specifically tied to particular educational establishments. The duty to avoid disrupting the child’s education will apply equally to children studying at FE colleges as to children in schools, which addresses a particular concern raised in Grand Committee.
New Section 22D restates Clause 10, which provided that if the local authority is considering moving a child from a placement with parents, local authority foster care or a children's home, which are all regulated and well supported placements, to another type of accommodation, such as unsupported lodgings or a hostel, it must undertake a full, statutory review of the child’s case, chaired by an independent reviewing officer, before making a decision.
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We are convinced that the approach contained in the revised clause will allow local authorities to make effective placement decisions focused on the needs of the individual child. The detail of these requirements on local authorities will be fleshed out in the revised Children Act 1989 guidance and in the regulations, for which further provision is made in new paragraphs 12A to 12F to be inserted in Part 2 of Schedule 2 that will set out the detailed arrangements.
I believe that the arrangements set out in the revised clause meet the will of the House more effectively than the original provisions and get the balance that we are rightly seeking to achieve between taking full consideration of issues to do with proximity, education and locality in placement decisions made with respect to children with the overriding duty of local authorities to see that any placements safeguard and promote their welfare.
Baroness Morris of Bolton: This new clause, which draws together the different issues that a local authority must take into account when placing a child, is broadly welcome and responds to a number of our concerns in Grand Committee, not least how to translate strategy into action on the ground. We are very pleased to see the emphasis on a placement allowing a child to live near home with a sibling and that arrangements must not be made if they are not consistent with the child’s welfare or will disrupt his education, although we feel strongly that they should also not disrupt any training being undertaken by a young person. We welcome the provision that accommodation for a disabled child or young person must be suitable for his needs.
While we appreciate the effort to change this part of the Bill to provide clarity and a greater responsibility for the promotion of welfare and safety, we still have some questions about how this will translate into an effective mechanism for deciding on the best placement for a child. Can the Minister explain what happens when a number of issues that affect a placement come into conflict? Disabled care versus location might be answered, but what if location might be a risk to a child's safety for other factors, such as abuse? Will there be a mechanism in place for guidance on these issues? How much will local authorities be allowed to exercise their own judgment in placements under these prescriptions?
New Clause 22C (5) states that:
Should not that be the most appropriate in terms of the child's welfare? There seems to be no restriction on what constitutes “appropriate”.
We recognise that the aim of the changes was to bring the welfare of the child to the foreground in decision-making, but should there not be a proviso here as well? Once again, we want to be absolutely certain that what is driving the placement is the welfare of the child and to be sure that there is no loophole to allow local authorities to place a child somewhere for reasons not exclusively concerned with welfare. That is a most important subsection, as it governs what will happen in extreme cases.
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New Section 22C(6) defines what is a placement and, in a list of four definitions, as the Minister said, includes, in paragraph (a) relatives and friends, in paragraph (b) a local authority foster parent, in paragraph (c) a children's home, and in paragraph (d) any other placement that conforms to regulations. The issue here is the status of the friends and relatives under the subsection. The amendment states that a placement can mean a
- “placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent”.
When we queried that, the Bill team said that that subsection applies to relatives and friends who are not yet approved as local authority foster parents—that they could have a child placed with them and then be registered as a foster parent—but that is manifestly not reflected in the text of the amendment. As it stands, it makes it compulsory for a relative or friend to be a local authority foster parent before the placement can be made. If that is not the case, the amendment should be altered to reflect that.
I also ask the Minister about the list of preferences. Does the local authority have a duty to place a child with family and friends first? I most sincerely hope that it does, as that goes to the heart of much what we have been discussing. If the list is designed to be in order of preference, the amendment does not make that clear, as it simply defines what a placement could be.
The new clause raises so many questions that I could be here all day. I hope that other noble Lords will cover areas that I have not, or perhaps we could bring forward amendments on Report, after considering the Minister’s comments. However, in one area I seek assurance from the Minister. The Integrated Children's Services Development Group has asked for a clear guarantee—we are happy to ask this for it—that children with acute and complex needs will be able to receive the most appropriate care placement, including an out-of-area specialist setting where that is necessary.
Baroness Massey of Darwen: I shall raise something completely different. I have a small but, I think, significant amendment to the set of new clauses. I find myself nodding sympathetically to my friend on the Opposition Benches on many issues, but that is not what I am going to talk about.
I want to talk about Amendments Nos. 62 and 63, which are about placing children with carers who are of the same religion. I want to add, “or of no religion”. I would prefer that there were no reference to religion in the Bill, but here it is. I must declare an interest as patron of the British Humanist Association and the National Secular Society. When a large number of people in this country profess no religious belief and do not attend any place of worship, they cannot be discounted. I therefore think that the words, “or none”, should be included and should be standard parlance when we talk about religion in any legal document.
When I sat on the Religious Offences Select Committee, we were very careful to respect the rights and feelings of those who professed no religion. We should do so again here. I commend the amendments.
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Lord Rix: I welcome the Government’s recognition of the particular needs of disabled children and young people in new Section 22C(8)(d) in the amendment. However, I am concerned that without specific measures to promote the development of a range of local provision, disabled young people will continue to be routinely placed far from home in expensive placements.
The provision that states that local authorities should place children and young people in their local area where “reasonably practicable” will mean that disabled children will continue to be placed out-of-authority. That will continue the trend for disabled children to be placed a long way from their families. The further away from home a disabled child is placed, the harder it is for their parents and friends to visit and the more isolated they become. We know that that also increases their vulnerability to abuse. Local and regional commissioners should be required to plan future services to meet that need within the local region wherever possible.
I welcome the Minister's commitments in Committee to encourage a range of suitable quality accommodation within each local authority area, but I am keen that there are practical methods to ensure that that happens.
6.15 pm
Baroness Walmsley: I am most grateful to the Minister for explaining to us these significant new amendments. I am also grateful to the Bill team for dashing over here on our last sitting day, when the amendments were laid 10 minutes before I left your Lordships' House, to explain it all to me. I am not grateful to them for ruining my half-term holiday. However, if this produces legislation that is better for children, that will have been a sacrifice well worth making.
Many questions occur to me and I am very grateful that we have come back into Committee to give us the opportunity to scrutinise the Bill, with an opportunity to come back at Report with some amendments. That has already been referred to. The Minister wrote to us about the amendment. First, on page 2 of his letter, he went to the heart of what he mentioned a few moments ago, which is that, wherever placement with parents or others with parental responsibility is not possible, the local authority should place the child in the most appropriate placement available. His letter stated:
I consider that to be a very significant phrase. Will that be consistent with doing everything possible to get the child back with its family, where that is also consistent with the child's welfare? Will the Government issue anything in guidance to ensure that that is also at the forefront of consideration of what placement is the most appropriate for the child?
On page 3 of the Minister's letter, he listed the criteria that appear in new Section 22C(8): the placement must allow the child to live near the home, must not disrupt the child's education, must allow the child to live with the sibling if possible if that sibling is also in care, that the child's disabled accommodation is suitable for their needs and is within the local authority’s area.
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Inevitably, there will be tensions where there is a conflict between those various criteria. Can the Minister say something about how social workers will make those decisions about which of the criteria is the most important in terms of the child’s best interests and welfare? In the end, the decision about what is the most appropriate placement will be a professional decision by the social worker, as it should be, but the social worker will have guidance from the Government, of which they will have to take notice. A little more clarification of how the Government envisage that that will work would be helpful.
I go back to the second of those criteria, which the noble Baroness, Lady Morris, mentioned, which is that the placement does not disrupt the child's education. The Minister has clearly listened to the debate and concerns expressed in Grand Committee. I am pleased that he has, because now we are not just talking about schools, but the disruption of education. Given that we have the Education and Skills Bill going through another place at the moment, which is trying to keep children in compulsory education until they are 18, I am very surprised that the Minister's amendment just states “education”, not training as well, although the way that it has been phrased allows for education being carried out in a college of further education as well as a school. What about training in the workplace, which I believe is to be covered by the Education and Skills Bill, for 16 to 18 year-olds who will have to stay compulsorily in education? Why only these criteria? Where does health come in the set of competing criteria that must be taken into account? It would be helpful if the Minister could say something about that.
I have another question about not disrupting a child’s education. Will the decision whether to move the child’s educational establishment be holistic? In other words, will there be consideration not only of the academic aspect but of whether the child is happy? A move might be a good idea because a placement at another school might give the child a better academic opportunity, but the child’s existing school might have the most brilliant football training and all the child ever wants is to become a professional footballer. As long as the child is getting an adequate education, there should be that consideration.
Page 4 of the Minister’s letter refers to children who move out of care into what are called “other arrangements”, and to the fact that the local authority,
Will the Minister confirm that this means independent, or supported independent, living? If it does, will he clarify that that will take a child up to the age of 18? In other words, will there be a review if these “other arrangements”, up to when the child is 18, break down? In addition, I echo the call for the
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Finally, I support what the noble Lord, Lord Rix, said about the importance of ensuring that local authorities proactively develop more and sufficiently diverse resources locally for children with special needs. There is a lot of very good practice out there. People are very imaginative in putting together packages of support for children with disabilities that will prevent them having to go miles away from home, making it difficult for their parents to visit them and therefore putting them in a vulnerable position. In some cases, it prevents them going into care at all. This good practice needs to be studied and developed. Local authorities really need a positive duty to be put on them to ensure that there is a range of provision, if not in one local authority then in a group of local authorities, very close to each other, that make arrangements together—some sort of regional arrangement that will ensure that children with disabilities are not the only ones whose parents have to travel miles if they want to see, support and protect them.
Lord Judd: I would like to place on record my warm appreciation of the Minister’s response to what was argued in Grand Committee. I think we are all aware that he is a listening Minister, and it is absolutely clear from the amendments and the very full and courteous letters that he has written to us that he has listened very carefully indeed and has tried to respond as positively as possible. This is almost exemplary conduct by a Minister, if I may say so.
However, I urge the Minister, having established so clearly that the Government share the concerns and commitments of all those who work with children and who have submitted so much considered material on the Bill, to take very seriously indeed the outstanding issues and to put on record as firmly as possible his support for the points that have been made in the House on the amendment. Having made that general point, I shall pick out a couple of points.
First, the noble Baroness, Lady Morris of Bolton, has argued strongly and passionately that the driving force must be the welfare of the child. None of us could dissent from that, but it is more than that; it is being absolutely certain that the child is being treated not as an object but as a person in their own right, and that their integrity and wishes are taken fully into account at all times. With all the pressures that operate, that can so easily become theory rather than practice. It is tremendously important to work at ensuring that the child’s own wishes are listened to carefully. This can be illustrated by considering what happens when making special arrangements for accommodation. Of course the security and the well-being of the child are absolutely fundamental, but in a disrupted life it is terribly important to make a priority what the child sees as significant in their relationships so that there is as little disruption as possible in the general context in which those arrangements are made.
I finish by making an observation that cannot be made too often. Yes, we are encouraging local authorities to provide more resources, but there is a bill attached to this. It has been heart-warming to
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Lord Williamson of Horton: Unlike the proposed new clause before Clause 7 that we discussed earlier, this group of amendments is a form of replacement therapy; it proposes to remove Clauses 7 to 10 altogether and replace them with a single clause. It is also separately proposed to remove Clause 30 and to reinstate it in a schedule to the new clause. We are therefore dealing with quite a substantial change. I favour this approach, but even though we are largely incorporating into the Bill provisions that already exist in Section 23 of the Children Act 1989, it is still important that we as legislators are content with the wording of the proposed new clause, which we intend to become the law of the land, particularly as I am sure that we will be asked why, instead of amending Section 23 of the 1989 Act as the Government proposed, we are now proposing a new provision in substitution of that section.
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