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It is very easy to use eloquent language to describe the role of the children's commissioner, but it is a very difficult role to undertake. The emphasis that is given in the Bill by the amendment made in the other place on outcomes is surely the right approach.
At the end of the day, this role will be about influencing and helping to change the way in which governments, different departments, local authorities and all the agencies involved work. Putting the emphasis on the practical outcome of that work will in the end lead to a much more effective commissioner.
Very recently, the Constitution Committee, chaired by the noble Lord, Lord Norton of Louth, discussed the need for post-legislative scrutinyin other words, coming back after two or five years to look at how effective legislation has been in practice. I would very much welcome that opportunity. I think that what is
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contained in the legislation as amended by the other place gives us a much better opportunity to change children's services for the better.
I would also like to comment briefly on Amendment No. 8A, in the name of the noble Baroness, Lady Walmsley, which deals with casework. I recognise that the noble Baroness has attempted to meet the point, in that paragraph (b) says that any investigation by the commissioner,
However, I suggest that this would prove quite unworkable in practice. Having to make a judgment about whether any particular intervention duplicated the work of another agency would be very difficult.
There is a genuine concern that if there is any uncertainty and it is felt that the commissioner has a right of intervention in individual cases where general public policy is not involved, it will lead to confusion over responsibility and accountability. The noble Lord, Lord Laming, is in his place. What I took from his remarkable report into the tragic circumstances of the death of Victoria Climbié, first and foremost, was a lack of clear accountability.
The changes made in children's services are about giving us a very strong line of accountability. If we were to accept the amendment, even though modified by the noble Baroness, it would detract from that accountability. I hope that we will not accept that.
Baroness David: My Lords, I am sure the Minister must be very happy to have one voice in support, but I am afraid that he will not have mine. When the Bill was considered in this House during the summer, I felt there was agreement that we had much improved it by cross-party amendments. In particular, there was very strong agreement that a Children's Commissioner for England should have the same general functions as those in Wales, Scotland and Northern Ireland to promote and safeguard the rights and interests of children.
However, the Bill has come back to us with the general function that was given to the commissioner in the original Bill in March restored: the commissioner shall promote "awareness" of the views and interests of children. That is much weaker than the role of the other commissioners in the UK and weaker than those in Europe, as the right reverend Prelate and the noble Baroness have said.
I do not see how the Government can square their promise in the Green Paper of a powerful, independent champion for children with what is now in Clause 2. Even at this late stage, I hope very much that the Minister can be persuaded not to spoil this much welcomed initiative and to restore the promotion of rights to the commissioner's general function. I hope that the Commons can be persuaded, when they look again at the Bill, to think rather carefully about this matter. That view has been very strongly put by every speaker so far, except my noble friend Lord Hunt. I
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very much hope the Minister can be persuaded by us and that the Commons can be persuaded to put "rights" back into the Bill.
Baroness Massey of Darwen: My Lords, this House has considered the Bill with rigour and insight. I have had the pleasure of being present for most of the discussion on it. It is fitting to pay tribute to all noble Lords who have discussed the Bill and discussed children's welfare and rights with such passion and enthusiasm.
I am as keen as anyone that we should have a commissioner with power, but I simply cannot agree that the proposed commissioner will be a fish out of water, as my noble friend Lord Morgan described him.
The key change that we succeeded in making to the Bill was that the commissioner "must" have regard to the UN Convention on the Rights of the Child. "Must" have regard was changed from "may" have regard. Surely that is an umbrella function which removes the need to insert "rights" in all the other parts of the Bill.
The commissioner should have a strategic role in influencing systems at a local level, which will in practice secure children's rights and positive outcomes for children. Those systems will cover most of the concerns raised by the noble Baroness, Lady Walmsley, in moving her Amendment No. 8A. Victoria Climbié was let down by systems at a local level, which failed her. As the right reverend Prelate said, children come in from the periphery at a local level. That is what the commissioner will influence.
The commissioner should not dabble in the kind of detail that some noble Lords seem to be proposing, but in principles. In her extended, wonderful metaphor about Christmas presents, the noble Baroness, Lady Walmsley, spoke about a "frisson" of disappointment in the commissioner. I think that I can live with "frisson". As long as I had the bike, I could get used to the colour.
The Earl of Listowel: My Lords, I shall speak briefly to Amendment No. 10A, which is in the name of the noble Baroness, Lady Walmsley. In doing so, I welcome Amendment No. 26, which concerns care leavers and young people with learning disabilities. I was encouraged to hear in our previous debate on the Bill about the work of the noble Baroness, Lady Ashton of Upholland. I was encouraged, too, about how receptive she was to the proposal, given that there is some difficulty in discriminating between older young people and children.
The amendment would be very helpful to the Children's Rights Commissioner, with whom I was speaking today. He emphasised that there are areas he cannot look at but which affect children leaving care.
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The new Children's Commissioner will be able to look at those areas; for instance, housing for those young people, who are often poorly educated, have difficulty finding employment and can gain access only to the poorest housing. The commissioner will be able to look at such issues and I very much welcome that.
However, I am deeply saddened that the Government have not been able to accept the provision for under 22 year-olds in young offender institutions. If I remember it correctly, about 40 per cent of them have come through care, but when I spoke to the governor of a young offender institution during a recent visit, he did not know how many people in the institution came out of care. There appears to be a loss of care leavers in the prison system. They are often very immature and vulnerable.
When I spoke with Her Majesty's Inspector of Prisons about young offender institutions, she spoke about the positive effect of the Youth Justice Board's dealings with under 18 year-olds. Where they used to share institutions with the under 22 year-olds, there was a knock-on effect for those under 22-year-olds. It is to the benefit of the under 18 year-olds that they are now are moving out of the prison estate, but to the detriment of under 22 year-olds. I regret that and I hope that the Government will be able to think again about this aspect of the Bill.
Lord Laming: My Lords, as noble Lords will know, I am extremely grateful to the Government for bringing forward the Bill and I admire greatly the thought that has been given in this House to strengthening the Bill as it has gone through its various stages.
However, I am concerned at what seems to be a slight over-preoccupation with rights. Until the noble Lord, Lord Hunt, and the noble Baroness, Lady Massey, spoke, I was beginning to feel rather isolated and lonely. Of course, we all agree that rights are very important, but we must have in mind that the human rights legislation applies to every citizen, including children. There is already a director of children's rights in the Commission for Social Care Inspection. The noble Baroness, Lady Warnock, may be right that, as a country, we were rather slow to accept the importance of rights for every citizen, but we need to be careful not to go to the other extreme and see rights as the central issue in every piece of legislation.
In looking at the Bill, we need to pay particular attention to Clauses 4(1) and 8, which have been deliberately included in the Bill. I am sure that your Lordships will not underestimate the significance of Clause 8, which states that the commissioner "must have regard" to the United Nations Convention on the Rights of the Child in everything that he does. Nothing could be clearer than that in informing the work of the new Children's Commissioner in this country.
But, and this is a big "but", the role of the Children's Commissioner in our society, as set out in the Bill, will be so much wider than the matter of rights. It is very important that the ambitions which have been spoken of so ably in this House as the Bill has continued through
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its different stages are reflected in the work of the commissioner. Time after time, we have emphasised that the work of the commissioner should be broadly based on ensuring the well-being and proper development of all children and enabling them to fulfil their potential and become effective members of society. That is more ambitious than some of the roles that are accorded to other commissioners in other countries. Balance has to be struck between rights and that broader agenda. We are not creating a Bill of rights. We are creating a Bill for a Children's Commissioner, not a rights commissioner or an ombudsmen, and we need to bear that in mind. Mention has been made of Victoria Climbié, but all the rights that have been passed by Parliament would not have helped her. What would have helped Victoria Climbié is if the duty to care, which is envisaged in the Bill on every one of the key services, had been carried out properly. If the duty to care had been carried out at a local level, it would not have been an issue of rights but an issue of practicean issue of an outcome for a child who needed our help. It is very important that we make that clear in the Bill. Certainly, for my part, I have never thought that it was a function of the Children's Commissioner to be involved in helping children and young people in legal proceedings.
Finally, on Amendment No. 8, I hope that noble Lords will excuse a rather personal comment. During my time as chief inspector, I received a stream of requests from families, individuals, grandparents and neighbours, asking me to investigate how a case was being handled either by the courts or local authorities or by some other service. Had I felt it appropriate, I could of course have intervened, but for the most part I felt that it was my responsibility to direct those people to the proper mechanisms that had been put in place by Parliament to deal with individual concerns, be they matters of appeal, tribunals, ombudsmen or complaints procedures.
We must allow the proper procedures set by Parliament to fulfil their separate and distinctive functions, and we must recognise that in all cases involving family breakdown and the removal of children, there will be pain and conflict and quite often a feeling of anger and injustice. That is why Parliament has put in place the machinery for challenging the decisions made by those in authority in our country. It is not the job of the Children' Commissioner to second-guess the roles accorded by Parliament to the other bodies.
What we have put in place in Clause 4 is the opportunity for the Children's Commissioner to pursue individual cases that raise issues of public policy relevant to other children. I believe that no Children's Commissioner worth his or her salt
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