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Lord Elystan-Morgan: My Lords, before the Minister sits down, perhaps I may make a further inquiry on this matter. My understanding is that under Section 1 of the Children Act 1989 the court has an obligation—

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whether it is making a private law order under Section 8, a care order under Section 31 or a supervision order—to consult the child on their wishes in so far as they are ascertainable, bearing in mind the child’s age and situation. That is a clear obligation of the court, and failure to do so would be the subject of appeal. However, so far as concerns the obligation of a local authority under Section 17, I accept, and indeed applaud, the fact that great attention has been given to an administrative directive. As I understand it, that could never be the subject of an appeal because it is not a justiciable issue. Nor, as I understand it—I shall be corrected if I am wrong—could it be the subject of an application for judicial review. That is the difference between what is proposed in the amendment—putting something under the sovereign authority of statute law—and what is undoubtedly intended to be an authoritative direction of an administrative nature. Does the Minister agree that my analysis is broadly correct?

Lord Adonis: My Lords, the noble Lord is pressing beyond my knowledge for the circumstances in which applications for judicial review can be sought. I cannot answer his specific point about whether it is possible to make an application for judicial review in respect of an alleged failure to observe circulars issued under Section 7 of the Local Authority Social Services Act 1970.

Lord Elystan-Morgan: My Lords, I am not sure that that is what I am asking.

Lord Adonis: My Lords, I am informed that circulars issued under that section are binding on local authorities. They must act under them, and therefore we believe that the legal basis is strong. However, I am afraid that I cannot answer his specific point about the circumstances in which a judicial review can be sought.

Baroness Howe of Idlicote: My Lords, are we really saying that there is a statutory duty to do everything that I ask for in my amendment and that therefore those who are very concerned about this matter and who certainly convinced me that it was necessary to bring back the amendment have no case at all?

Lord Adonis: My Lords, I do not believe that there is a case in this respect because there is a statutory basis. However, what the amendment seeks is implicit in the statutory duty because the requirements on local authorities to record the wishes and feelings of the child are issued under Section 7 of the Local Authority Social Services Act 1970 and local authorities must act under that section. Therefore, our view is that there is an implicit statutory duty, which we believe meets the needs of the case.

Baroness Howe of Idlicote: My Lords, I cannot say that I am 100 per cent satisfied with what I have heard and, under those circumstances, I cannot promise that I will not want to return to the matter. However, in the mean time, perhaps there will be opportunities to have discussions to clear up some of the matters—if it is possible to clear them up.

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Lord Adonis: My Lords, if it helps the noble Baroness, I shall certainly look at the issue of the evaluation and reply to her in writing on that before Third Reading, with a copy to other noble Lords.

Baroness Howe of Idlicote: My Lords, I am most grateful to the Minister and, in those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Independent reviewing officers]:

7.15 pm

Baroness Walmsley moved Amendment No. 22:

(a) give information to the child about independent advocacy;(b) where the need for independent advocacy is identified, require the local authority to make arrangements for the provision of independent advocacy for the child.(a) a member of the local authority or any of their committees or sub-committees, whether elected or co-opted;(b) an officer of the local authority employed by the children’s services department of that authority; or(c) a spouse or civil partner of any such person.””

The noble Baroness said: My Lords, I shall speak also to Amendment No. 23. The purpose of Amendment No. 22 is to require independent reviewing officers to provide information to children about independent advocacy and, where a need is identified, for the service to require the local authority to provide it. The purpose of Amendment No. 23 is to ensure that local authorities conduct regular assessments to verify the provision of sufficient independent advocacy services.

We tabled both these amendments because we do not believe that children and young people should have access to independent advocacy only at the point at which something has gone wrong. Better outcomes and potentially long-term cost savings can be achieved if independent advocates are involved, where necessary, to support children and to help them to be involved throughout the decision-making process.

Perhaps I may say more about Amendment No. 22 first. Under current guidance, the IRO is required to inform the child of his right to make a complaint and, in such circumstances, his right to an advocate. I believe that this is too late. It puts the onus on the child to take action after a decision is made about which he is unhappy, rather than at the time, when he may be able to influence the direction of that decision and thereby perhaps end up with an outcome with which he is much happier. Therefore, we believe that the IRO should inform the child about independent advocacy—what it means, how it can help him and how it is different from the social worker and IRO roles—before each review.

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Following this discussion, and where the child is clear that he wants an advocate or the IRO feels that the child would benefit from one as his views do not correspond with the care plan, the local authority should be required to provide advocacy services to that child. It should be emphasised that not all children will need or want advocacy, but the point that I am trying to make is that they should be given the opportunity to make an informed decision about it rather than simply not have access to it.

Amendments Nos. 22 and 23 were both tabled in Committee and I am returning to them. In Grand Committee, the noble Lord, Lord Adonis, expressed the Government’s view that these proposals were unnecessary in the light of the modifications made in the Bill to the role of the IRO. He said:

He went on to say:

Although I welcome that and the fact that the Government are strengthening the role of the IRO, I do not believe that that enhanced role meets the need for more children to access professional independent advocacy. I say that for three reasons. First, the purpose of independent advocacy is fundamentally different from that of the IRO. The expression of the child’s views in the decision-making process by an IRO who is responsible for facilitating its outcomes is quite distinct from the representation of those views by an advocate who is independent of the process. There is a strong argument that, under human rights law, natural justice requires the child to be independently represented in decision-making about his private and family life. As Mr. Justice Munby said:

that is, of the UNCRC—

In other words, using the analogy of court proceedings, those who are making a judgment about a child’s welfare cannot also argue the case.

The second reason is that IROs cannot practically be expected to enable the necessary participation of the child in the review process. Despite the existing requirement in regulations for the IRO to ensure that the voice of the child is conveyed to the review, children still tell the various children’s organisations that they do not feel that they are listened to. One

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child said of his experience, “I told the IRO that I wanted contact with my sister but that didn’t come up at the meeting”. Well, it should have come up at the meeting.

In response to this situation, the Government have stated their intention to introduce a stronger requirement on the IRO to meet with the child before the meeting. The Minister has just reiterated that in response to the last amendment. That is welcome but will not resolve the fundamental conflict in role in that IROs have significant responsibilities in relation to chairing review meetings, which means that they do not have the capacity to give young people the dedicated support necessary to ensure that their views can be clearly represented. Independent advocates are also able to ask challenging questions of the review participants in a way that the IRO could not possibly do from the position of chair of the meeting.

The third reason is that the remit of the IRO is to act in the best interests of the child. It is possible that they may conclude that what the child wants is contrary to what is in the child’s best interests. In that situation, they would not be able to represent the views of the child.

Professional advocacy is quite different because it is independent of the system and its primary role is to work exclusively with the child to ensure that their views and rights are promoted. An advocate ensures that children understand what is happening to them, helps them to navigate the system, supports them to understand their rights and helps to ensure that those rights are met. As far back as 1997, Sir William Utting concluded in his report People Like Us that looked-after children need independent advocacy as a source of protection and as a means of making their voices heard in an otherwise very difficult system for a young child.

As we heard in our earlier debates, disabled children placed away from home most urgently need a right to advocacy because they are at least three times more likely to be abused or subjected to demeaning treatment than other children. I was delighted that the Minister in another place, Kevin Brennan, during a hearing of the Children, Schools and Families Select Committee on 20 February, agreed with my honourable friend Annette Brooke MP that children with both physical and mental disabilities should have advocates where they need them.

I emphasise that better decision-making can save money in the end. I urge the Government to think again and to deliver a statutory right to independent advocacy when significant decisions are being made in the lives of looked-after children and not just when they have cause to complain, seizing the opportunity that professional independent advocacy offers to empower young people to participate fully in decisions. It has to be integral to the strategy, which I know the Government have, of improving outcomes for children in the care system. I beg to move.

The Earl of Listowel: My Lords, I support these amendments. My Amendment No. 38 would place a duty on children’s homes and fostering agencies to provide access to independent advocacy. The first two

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amendments, to which the noble Baroness spoke, focus on the decision-making process and on ensuring that there is an advocate available in that process. I declare an interest as a patron of Voice, formerly Voice for the Child in Care, which is a widely used advocacy service.

In Grand Committee I tabled this amendment and I do so a second time because of a recent meeting held by the All-Party Group for Children on the social care workforce as it affects children. That highlighted to me again how vulnerable these children are. The Government are doing much commendable work in building up the workforce, but unfortunately we start from an extremely low level. For example, we have a great shortage of foster carers, as we have discussed already, and inevitably that means that occasionally the quality of foster care is not as good as we would want it to be—occasionally research points to that—and in children’s homes there is a great shortage of residential care workers. Over the years, it has become unattractive employment, which has implications on quality.

The Government set a target for residential childcare workers in children’s homes to attain a national vocational level 3 qualification in childcare, which is approximately equivalent to O-level, but they did not manage to reach it. There is still much to do to ensure adequate quality in the training of and equipment for staff in these settings who work with the most vulnerable children.

In many areas, particularly London, there is a shortage of social workers. That again has implications for quality because it is difficult to obtain the highest quality when one is just seeking to fill places. If one does not pay people well and does not provide them with the right professional framework, one has to recognise that one is not likely to attract the highest quality. That is no reflection on those who do the work. I take my hat off to the Government for recently increasing funding to social work, but we still have a long way to go and these vulnerable children are in the hands of people who have been neglected themselves. It is important that there is someone there just for the child, just to hear the child’s voice, just to be their champion when things do not go right—when they do not necessarily have the right social worker or the right foster carer or the right children’s home.

Under the amendment, there would be visiting advocates in children’s homes and fostering agencies. That is very important, which is why I bring it back again. I recall various visits that I have made to a children’s home: I spoke to a young man about the draughts he experienced in the children’s home; another child spoke of one of the showers constantly not working; and another one told of a table that needed to be replaced but it was not seen to. An inspector might pick up such matters, but an advocate will know the child. I ask the Minister how much of an opportunity the independent reviewing officer will have to get to know the children with whom he deals. I know that they are supposed to see them before the review, but can he remind me how often reviews take place and what real opportunity there is for a

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relationship to be formed? On best practice, Shaftesbury Homes and Aresthusa have a visiting advocate once a fortnight so that they get to know the children. I look forward to the Minister’s response.

Lord Judd: My Lords, in speaking to Amendment No. 22, to which I put my name, I hope that the House will forgive me if I draw on my experience in what was probably the most interesting period of my life when I had the privilege to be a director of Oxfam. It may slightly surprise noble Lords that I want to draw on that experience, but I see a direct parallel. We aimed to empower the disempowered. If one goes down that road, it is difficult to avoid a didactic and, in effect, paternalistic approach. It is absolutely essential that the advocacy in which you are involved really advocates the position of the community with which you are working and that you are doing your best to enable them to express themselves and to be heard where it matters. It is up to the professions to get that right. I see a direct parallel. We are about empowering the child, which is why advocacy is so important and professionalism is critical.

Either we are serious in our commitment to the child, as I have said several times in our deliberations today, or we are not. If we are, I conclude, just as I did in my days with Oxfam, that perhaps one of the most important ways of looking after the interests of the child is effective advocacy. That is where what this amendment talks about is crucial. I am sure that my noble friend will take the amendment seriously and I hope that he can give a convincing response.

7.30 pm

Baroness Morris of Bolton: My Lords, the noble Baroness, Lady Walmsley, and all other noble Lords know that I have great sympathy with these important amendments. The noble Baroness also knows that I am constrained because the Children’s Society has calculated that there would be a spending commitment of £3 million and, for the Conservative Party, that is an uncosted spending commitment—although I assure her that we would look at it.

I had the privilege a few weeks ago of meeting four remarkable young people: Shareen, Charlotte, Daniel and Nadir. They were members of the children in care council from Warwickshire who came to the House. They looked around and we had lunch and thought of a suitable room to have a meeting with them in, so we took them to the shadow Cabinet room with my honourable friend Tim Loughton. We had a wonderful meeting. As you would expect, they were articulate children. We talked about certain aspects of the Bill and, when we came to independent advocacy, Daniel said that he had been pleased to have an advocate provided by Barnardo’s. There are just too many times when you are in meetings with professionals who are just talking at you and not really listening to what you had to say. This was a very articulate young man. There is a clear need for professional advocacy to, as the noble Lord, Lord Judd, said, empower the disempowered.

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Baroness Howe of Idlicote: My Lords, I support all these amendments. They take me back a long way, to when I was chair of a juvenile court. Even in those days, one of the Children Acts advocated that children in care, or those who had no parental involvement at all, should always have a friend at their side. Maybe one needs a little more than a friend, but an independent advocate would certainly be essential in so many of the areas where decisions are being made.

It is quite clear from what the noble Baroness, Lady Walmsley, has said, and from what we have read in the briefing, that the role of the IRO is absolutely incompatible with being an independent advocate. I totally agree with all the other points made. I am afraid that, even though there is extra money involved, it is pretty essential when you are thinking about the future of children who are frankly going to cost you a lot more than that if you do not help them along the path to a rather different life in the future. I hope than when the noble Baroness, Lady Morris, looks again at the sums involved, she might persuade her colleagues that a rather more positive reaction is needed.

Lord Adonis: My Lords, we recognise that advocacy has an important role to play in improving services for looked-after children, ensuring that their voices are heard and their rights protected. The three amendments in this group make particular points about advocacy provision, and I will take them in turn.

On Amendment No. 23 and its proposed duty to provide independent advocacy services, local authorities are required, under the existing statutory framework set out in Section 26A of the 1989 Children Act, to make arrangements for all looked-after children, as well as other children in need and care leavers, to have access to advocacy services, including assistance by way of representation, to help them make representations about services they receive. This must include, but is not restricted to, the pursuit of complaints.

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