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Grand Committee

Wednesday, 16 October 2013.

Children and Families Bill

Children and famalies bill7th Report from the Delegated Powers Committee9th Report from the Delegated Powers Committee3rd Report from the Joint Committee on Human Rights

Committee (3rd Day)

3.45 pm

Relevant document: 7th and 9th Reports from the Delegated Powers Committee,3rd Report from the Joint Committee on Human Rights.

The Deputy Chairman of Committees (Lord Colwyn) (Con): My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Amendment 40

Moved by Baroness Jones of Whitchurch

40: After Clause 9, insert the following new Clause—

“Review of impact of under-occupancy penalty on prospective adopters, prospective special guardians and foster parents

Before the end of one year beginning with the day on which this Act is passed, the Secretary of State must—

(a) carry out a review of the impact of the housing under-occupancy penalty on prospective adopters, prospective special guardians and foster parents, and

(b) publish, and lay before both Houses of Parliament, a report of the conclusions of the review.”

Baroness Jones of Whitchurch (Lab): My Lords, Amendment 40 focuses on the impact of the underoccupancy charge on would-be adopters, special guardians and foster parents. We know that there is a widely held concern about the negative impact of the housing underoccupancy charge or, as we call it, the bedroom tax. The plight of those who are unable to move to smaller properties, or who need the extra accommodation for obviously justifiable reasons is regularly highlighted in the media.

However, I want to concentrate our concerns today on a very specific consequence of the new charge, which is how it impacts on the already chronic shortage of existing and potential foster carers. As noble Lords will know, the bedroom tax restricts housing benefit to one bedroom per person or per couple living as part of a household. Tenants affected will face a 14% cut in housing benefit for the first “excess” bedroom and a 25% cut where two or more bedrooms are underoccupied. The average loss of income is estimated to be around £14 per week. Our concern is that foster children are not counted as part of the household for benefit purposes and therefore that, technically, all foster carers could face cuts in housing benefit.

This matter was raised by our colleagues in the Commons and last-minute changes announced in Committee by the Minister mean that foster carers are allowed one additional room in their homes, as long as they have registered as a foster carer or fostered a child within the past 12 months. This means that around 5,000 foster carers would be exempt from the bedroom

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tax, and obviously we welcome that concession. However, foster carers with more than one child will still face the bedroom tax. The reforms still apply to foster carers who have two or three bedrooms for fostering children.

Carers in this situation can apply to a discretionary housing fund for support with their housing costs but because of its discretionary nature, this is not guaranteed—and carers will have to reapply for this benefit every six weeks, even if they have fostered a child on a long-term basis. We do not believe that this is satisfactory. It shows a lack of joined-up thinking by the Government, given the current acute shortage of foster carers. We believe that if the rules remain as they are, foster carers will be deterred from providing foster care for more than one child at a time. This means, for example, that children in foster care are more likely to be separated from their siblings. With there already being a shortage of foster carers in the UK, these reforms are likely to mean fewer new recruits coming forward and children’s well-being suffering as a result.

Our amendment is simple and modest. It would require the Secretary of State to review the impact of the bedroom tax on foster carers to see what impact this is having, on this group and to report back to Parliament on the conclusions within one year. When this was debated in the Commons, I understand that the Minister agreed to take this proposal away and think about it again.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): I understand that the purpose of this amendment is to ask us to conduct this review. As I know that noble Lords are anxious to move on to the justice provisions, which my noble friend Lord McNally will be covering, it might assist the Committee to know that the Government are committed to conducting an independent assessment of the impact on these particular groups and will be commissioning this shortly. We agree with the noble Baroness that this is very important, and a report on the outcome will be published within the timescale that her amendment calls for—within a year of Royal Assent of the Bill. We will place a copy of the report in the Libraries of both Houses of Parliament. I hope that noble Lords will find that intervention helpful.

Baroness Jones of Whitchurch: I thank the Minister for that clarification. I was coming to that point. The clarification I was seeking was: will there be just one review, the DWP review that the Deputy Prime Minister announced yesterday, or will there be a separate review within the Department for Education? I am grateful for the Minister’s clarification that it will be placed in the Library, but on an important issue such as this we need some assurance that there will be an opportunity for Parliament to debate the conclusions rather than just read them. Perhaps the Minister could clarify those points, which is what I was going to ask him to do anyway. I beg to move.

The Earl of Listowel (CB): My Lords, I am most grateful to the mover of this amendment but also to the Minister for this very good news. The noble Lord,

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Lord Freud, took great trouble during the passage of the Welfare Reform Bill to consult the interested parties around foster care but I have a couple of questions for the Minister. What is the situation for families who are providing supported lodging for young people at university for whom they wish to keep a room open when they return? More generally, what is the position for families providing supported lodging for older young people who have left foster care but whom they still wish to support?

Lord Wigley (PC): My Lords, I will intervene very briefly if I may. Whereas Part 1 of the Bill largely did not apply to Wales, Part 2 to a large extent does. I therefore ask the Minister, in the context of the new clauses being proposed, whether any review that he will be undertaking will be in co-operation with the National Assembly of Wales and the Government of Wales, which have responsibility for education and social care but not for some aspects of social security and housing benefit. I would be grateful if he could at least give an indication that he will take that on board.

Lord Nash: My Lords, I should like to reassure noble Lords that the Government are committed to helping people foster, adopt and be special guardians to some of the most vulnerable children. We want to ensure that government policy supports this aim. As has already been pointed out, on 12 March my right honourable friend the Secretary of State for Work and Pensions announced an easement of the treatment of foster carers under the housing benefit policy to remove the spare room subsidy. Foster carers are now allowed one additional room under this policy, as are those who have a child placed with them for adoption. That will ensure that many foster carers will no longer be affected by removal of the spare room subsidy.

Adopted children, those placed for adoption and those being looked after by special guardians are treated as part of the family in the same way as birth children, so these children’s bedrooms are also included in the bedroom assessment for the household. Prospective adopters and prospective special guardians awaiting a child being placed with them are treated differently. This is because these are temporary situations. People in these circumstances will be able to apply to the local authority for short-term assistance from the discretionary housing payment fund. My honourable friends the Minister for Children and Families and the Minister for Welfare Reform have written to local authorities highlighting that these groups should be a priority for discretionary housing payment funding. The measures the Government have taken should ensure that foster carers, prospective adopters and prospective special guardians are not unfairly treated by the removal of the spare room subsidy.

The Government are committed to conducting this review and it will be placed in the Library. It will be a matter for noble Lords as to whether or not they wish to debate it. The Government have commissioned a separate report from Ipsos MORI but, in answer to the noble Baroness’s question, we will be having our own report on this matter.

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I shall write to the noble Earl, Lord Listowel, in response to his questions about supported lodging. So far as concerns the comment of the noble Lord, Lord Wigley, we will talk to the Welsh Government regarding our review of foster carers, and I will write to the noble Lord further about this. In those circumstances, I urge the noble Baroness, Lady Jones of Whitchurch, to withdraw her amendment.

Baroness Jones of Whitchurch: My Lords, I thank the Minister for the information that he has given about the fact that there will be two different reviews. I could make the point that, of course, within a year a considerable amount of damage could already have been done not only to the incomes of the lowest paid and the poorest people in our society but potentially to the availability of foster and adopter volunteers. Having said that, I am grateful that a review is taking place. I think that we all need to have the evidence, and we need to have some empirical research that shows us the extent to which this is happening.

I thought that the Minister’s response on whether there would be a debate was thoroughly inadequate. On a matter such as this, given that it has already been acknowledged that there is a potentially serious issue here, I should have thought that he could have taken more steps to determine that we could debate the findings. Nevertheless, at this stage, I beg leave to withdraw the amendment, although I shall no doubt come back to it at a future stage.

Amendment 40 withdrawn.

Amendment 41 not moved.

Amendment 42

Moved by Lord McColl of Dulwich)

42: After Clause 9, insert the following new Clause—

“Child trafficking guardians for children who may have been victims of human trafficking

(1) The Children Act 1989 is amended as follows.

(2) After section 26A insert—

“26B Child trafficking guardians for children who may have been victims of human trafficking

(1) A child trafficking guardian shall be appointed to represent the best interests of each child who might be a victim of trafficking in human beings if the person who has parental responsibility for the child fulfils any of the conditions set out in subsection (3).

(2) The child trafficking guardian shall have the following responsibilities to—

(a) advocate that all decisions taken are in the child’s best interest;

(b) advocate for the child to receive appropriate care, accommodation, medical treatment, including psychological assistance, education, translation and interpretation services;

(c) advocate for the child’s access to legal and other representation where necessary;

(d) consult with, advise and keep the child victim informed of legal rights;

(e) where appropriate instruct the solicitor representing the child on all matters relevant to the interests of the child arising in the course of proceedings including possibilities for appeal;

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(f) contribute to identification of a plan to safeguard and promote the long-term welfare of the child based on an individual assessment of that child’s best interests;

(g) keep the child informed of all relevant immigration, criminal or compensation proceedings;

(h) provide a link between the child and various organisations who may provide services to the child;

(i) assist in establishing contact with the child’s family, where the child so wishes and it is in the child’s best interests;

(j) liaise with the UK Border Agency where appropriate;

(k) attend all police interviews with the child; and

(l) accompany the child whenever the child moves to new accommodation.

(3) Subsection (1) shall apply if the person who has parental responsibility for the child—

(a) is suspected of taking part in the trafficking of human beings;

(b) has another conflict of interest with the child;

(c) is not in contact with the child;

(d) is in a country outside the United Kingdom; or

(e) is a local authority.

(4) In subsection (1), a child trafficking guardian may be—

(a) an employee of a statutory body;

(b) an employee of a recognised charitable organisation; or

(c) a volunteer for a recognised charitable organisation.

(5) Where a child trafficking guardian is appointed under subsection (1), the authority of the child trafficking guardian in relation to the child shall be recognised by any relevant body.

(6) In subsection (5), a “relevant body” means a person or organisation—

(a) which provides services to the child; or

(b) to which the child needs access in relation to being a victim.

(7) The appropriate national authority—

(a) shall by order set out the arrangements for the appointment of a child trafficking guardian as soon as possible after a child is identified as a potential victim of trafficking in human beings;

(b) may make rules about the training courses to be completed before a person may discharge duties as a child trafficking guardian;

(c) shall by order set out the arrangements for the provision of support services for persons discharging duties as a child trafficking guardian; and

(d) shall by order designate organisations as a “recognised charitable organisation” for the purposes of this section.

(8) In this section a child is considered to be a “potential victim of trafficking in human beings” when—

(a) there has been a conclusive determination that the individual is a victim of trafficking in human beings, or

(b) there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim.

(9) For the purposes of subsection (8)(b) there are reasonable grounds to believe that an individual is a victim of trafficking in human beings if a competent authority has determined for the purposes of Article 10 of the Trafficking Convention (identification of victims) that there are such grounds.

(10) For the purposes of subsection (8) there is a conclusive determination that an individual is or is not a victim of trafficking in human beings when, on completion of the identification process required by Article 10 of the Trafficking Convention, a competent authority concludes that the individual is or is not such a victim.

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(11) In this section—

“parental responsibility” has the same meaning as section 3 of this Act;

“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Trafficking Convention;

“the Trafficking Convention” means the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16 May 2005);

“trafficking in human beings” has the same meaning as in the Trafficking Convention.””

Lord McColl of Dulwich (Con): My Lords, human trafficking is a brutal and shocking business. Trafficked people are modern-day slaves and are among the most vulnerable people in our society. They are deprived of their liberty and brought to a foreign country where they do not speak the language. They have no friends or family, and they do not know whom they can trust or where they can go for help. They have their passports taken away and are then imprisoned, sometimes behind locked doors but more effectively through physical and psychological threats, often to the safety of their families at home, even abroad. This desperate vulnerability is massively compounded when we are dealing with children, for obvious reasons.

It is with these children in view that I move Amendment 42, which recalls our deliberations on a similar amendment, Amendment 57A, which I moved during our debate on the Protection of Freedoms Bill in February 2012. In discussing that amendment on 15 February 2012, a number of noble Lords spoke passionately about the plight of trafficked children and the care they receive after they have been rescued. They emphasised the large number of trafficked children who had been lost from local authority care. The figures may have improved a little since 2010, when, over the preceding five years, 301 of the 942 trafficked children who were rescued then went missing from care. However, the Centre for Social Justice report in March of this year reported that many children are still going missing, with one local authority recording 25 trafficked children going missing in just five months in 2011.

Why am I revisiting this issue today? On the occasion of moving Amendment 57A at the Report stage of the Protection of Freedoms Bill, I was supported by three eminent co-signatories: the noble Baroness, Lady Royall, the shadow Leader of the House in the Labour Party; the noble Lord, Lord Carlile of Berriew, from the Liberal Democrats; and the noble and learned Baroness, Lady Butler-Sloss, from the Cross Benches. There was considerable momentum behind the amendment but I was pressed by the Government not to divide and, instead, to allow the commissioning of research into the arrangements for the care of trafficked children, and on that basis I agreed not to divide.

4 pm

I return to the subject today because, on 12 September this year, the report that the Home Office commissioned further to that debate was published and had its parliamentary launch yesterday, which some of your Lordships were able to attend. Produced by the Children’s Society and the Refugee Council, the report, entitled

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Still at Risk

, clearly supports what I said on 15 February 2012 and calls, as I did then and do again today, for the provision of child trafficking guardians. I shall return to the report shortly but, in introducing Amendment 42, I must remind noble Lords what it is that child trafficking guardians actually do and explain why the current structures of care do not amount to the same thing.

First, what do they do? The role of a child trafficking guardian has been developed by UNICEF, and my amendment is based on its model as set out in its important 2006 publication guidelines on the protection of child victims of trafficking. Child trafficking guardians have two main functions. First, they provide a constant point of reference. Child victims of trafficking are, for the reasons I have explained, especially vulnerable. When they are rescued they find themselves in a situation where they have to engage with multiple state agencies—the police, the courts, local authorities, social workers, education and so on. That is a daunting prospect for an adult in a foreign country—how much more so for a child.

When engaging with each agency, they have to deal with a different person and go through the process of telling their painful story again and again. In this context a child trafficking guardian provides an absolutely crucial role. It is not about creating an additional layer of bureaucracy as some people have alleged: the whole point is that the child trafficking guardian places no additional burden on the child but helps them to navigate their way through the existing bureaucracy. They are appointed as a constant in a bewildering sea of different agencies to help the child negotiate that sea.

The second main function of a child trafficking guardian is that they have a legal recognition to advocate on the child’s behalf and in the child’s best interests in all the negotiations with different state agencies. If the child does not want the burden of having to repeat their story again and again, they can ask the child trafficking guardian to speak for them.

Having reminded noble Lords of the remit of child trafficking guardians, I now turn to the arguments that the Government have previously advanced to suggest that the law already effectively makes provision for child trafficking guardians. In the first instance, the Government pointed out that the Children Act places on local authorities a general obligation to protect the welfare of all children within their boundaries. The Government have further pointed to three specific roles in the Children Act that assist the local authority in this task—namely, Section 26 advocates, independent visitors and independent reviewing officers. After close examination, as I explained in February 2012, I and other noble Lords have concluded that none of these meets the requirements of a child trafficking guardian, either according to the UNICEF definition or our obligations under the EU anti-trafficking directive.

Let me deal first with the advocates. Advocates appointed under Section 26A of the Children Act act on the child’s behalf only in relation to local authority case reviews and are not appointed from the moment a child is identified as a victim of trafficking. They

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become involved in supporting a child only if the child chooses to take advantage of the service. As one solicitor pointed out to me, this assumes the child in question is mature enough to make this decision. The solicitor wanted to know how this would help the very young trafficked children with whom they had worked, some of whom were under two years old.

Secondly, independent visitors can be appointed under Section 23ZB if a local authority considers it is in a child’s best interest. However, we should remember they provide only a befriending or visiting role and do not have the right to advocate on a child’s behalf. Section 25A requires the appointment of an independent reviewing officer for every looked-after child, with a specific function in relation to reviews of a child’s care. These officers are not required to have regular contact with a child between the review meetings and do not accompany or support the child in other contexts.

Having considered what child trafficking guardians do and the reasons why current legislation does not provide an equivalent, I now come to the research findings of the Still at Risk report, commissioned by the Government in preference to accepting my child trafficking guardian amendment of February 2012. I have to tell noble Lords that when I read the report, I felt that we had been absolutely correct to move Amendment 57A to the Protection of Freedoms Bill in 2012, and was convinced of the need to find the first available opportunity to retable my amendment. I must admit to great sorrow and a little frustration that we have been unable to move forward on this issue for 18 months. It pains me greatly to think of children who have not received the help they deserve in that intervening period.

The need for someone who can accompany a child through the complexities of the care system, the immigration system and the court process was articulated clearly by a girl called Precious, who was interviewed for the review. She said, “If you come newly, you can’t even understand because you have never been in a place like this before, somebody like me, I don’t know my way out. I can’t even speak. I don’t know how to talk to anyone. I wish I knew my rights. I wish I knew what to do”. How pathetic. Another girl, Josephine, said, “When I went to social services I didn’t have a social worker and my case was from one person to another person so I didn’t really know who I’m gonna go talk to because I didn’t have no one who really knew my case … And another thing, because of my language it was so difficult for me to try to express my feelings … emotionally, I was broken, I didn’t have no feelings at all, I didn’t know how my life would end up, I didn’t know what I’m gonna do, I didn’t know who; I didn’t know what I was any more”. How sad.

The report found great variation in the quality of care provided to trafficked children, as we heard yesterday from the researchers. The report states that,

“only a minority of the children were happy with the care and support they had received from their social workers. Although some individual social workers were identified as having been supportive, practice varied widely. Children often had multiple social workers or key workers, resulting in little continuity of care and children having to frequently repeat their stories of the traumatic abuse and exploitation they had experienced. Local authorities reported that they sometimes experience barriers to

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providing an allocated permanent social worker, and stakeholders emphasised that whoever supports the child needs the skills to manage complex situations”.

I now make some detailed comments about Amendment 42, which, although largely identical in effect to Amendment 57A, is different in structure. Amendment 42 requires each trafficked child to be allocated a child trafficking guardian as soon as possible after the child is identified as a potential victim of trafficking—a key requirement of the EU anti-trafficking directive. The particular responsibilities in proposed new subsection (2) have been based on UNICEF guidelines and are focused on providing that independent and continuous support in relation to all agencies; and that is what is currently lacking.

One key element of a child trafficking guardian’s responsibility is their role as an advocate on behalf of the child, which can include, where appropriate, instructing the child’s solicitor. This role and the need for its recognition by all relevant agencies are set out in proposed new subsection (6). This is vital if the advocacy function is to be effective and would enable the guardian to speak up for the child’s best interests to all those involved in the case.

As the Still at Risk report highlights, some voluntary organisations currently provide excellent advocacy and support services for children who are trafficked and, indeed, the report quotes some children as saying that this was the most helpful of all the support that they had received. However, these organisations have no recognition in law in relation to the child and are therefore able to assist only where the agencies and professionals handling the child’s case are open to their involvement. The amendment would provide a mechanism to give these organisations that legal recognition.

This brings me to another noteworthy aspect of the amendment. Proposed new subsection (4) allows for child trafficking guardians to be public sector employees, or staff or volunteers in a voluntary organisation. This allows the Government flexibility in determining how these services should be provided and rises to the challenge of managing costs for the good of our public finances—something that this Government have rightly prioritised. It could be expensive to appoint salaried staff and create a public sector agency to fulfil this role, whereas equipping charities or volunteers to do the work could be extremely cost-effective, which noble Lords will know appeals to the thrifty Scotsman in me.

In September 2012, in its report on the UK’s compliance with the Council of Europe’s anti-trafficking convention, the treaty-monitoring body known as GRETA said:

“A system of guardianship is essential to ensure the children’s protection and rehabilitation, assist in severing links with traffickers and minimise the risk of children going missing”.

The report recommends that the Government,

“ensure that all unaccompanied minors who are potential victims of trafficking are assigned a legal guardian”.

In June 2013, the US State Department’s Trafficking in Persons Report recommended that the UK,

“establish a system of guardianship for unaccompanied foreign children”.

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In June 2013, the Joint Committee on Human Rights said:

“We are persuaded that providing children with a guardian could support children more effectively in navigating asylum, immigration and support structures and help them to have their voices heard”.

It is clear to me that child trafficking guardians are an idea whose time has come. The case for their provision is very clear, both from the research and through subsequent international developments. I firmly believe that the time for talking is over and the time for action is here. I very much hope that the Government will accept the amendment and I look forward to hearing what the Minister has to say. I beg to move.

4.15 pm

Baroness Massey of Darwen (Lab): My Lords, we are all aware of the passionate concern of the noble Lord, Lord McColl, for victims of trafficking, and of the concern of the noble and learned Baroness, Lady Butler-Sloss. I support the amendment strongly and do so as patron of the child trafficking unit at the University of Bedfordshire, which does amazing work in supporting young people who have been trafficked. The issue foremost in its mind is the importance of guardianship and advocacy. Children are still at risk and the present arrangements are not adequate. The noble Lord, Lord McColl, eloquently detailed the need for guardianship, and I wish to add a few remarks.

I remember when the noble Lord, Lord McColl, introduced the Second Reading of his Private Member’s Bill on human trafficking to the House in November 2011. These issues came up then. The right reverend Prelate the Bishop of St Edmundsbury and Ipswich spoke of trafficking being an issue for our common humanity. Nothing seems to have changed and, in particular, children who are trafficked need all the help they can get. A guardian who advocates in the best interests of the child is a vital element in that support.

Many of these children remain unidentified unless they are associated with criminal offences. I am thinking of young boys who work in cannabis factories, of which, I read in the newspaper, there are about 500,000 in this country. These boys get caught and the bosses escape. I am thinking of girls sold into the sex trade, who have their passports removed and are kept locked away to have sex with dozens of men a day or are sold into domestic slavery. Sometimes, if these children escape or are discovered, they are passed around the systems. They do not speak much English and they have no knowledge of the support systems that might help them. Many simply go missing.

Even if they are found and receive support, it may be well meaning but inappropriate. I remember one girl who was accommodated in a flat in a suburb outside London with no friends. On Christmas Day, a social worker took round a cake. Apart from that she was isolated, and the isolation of such children can mean that they are at real risk of being unprotected and retrafficked.

These young people need a guardian, as the noble Lord, Lord McColl said, to help with language difficulties, legal issues, accommodation, finding a friendship group

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and protection. It may be the case that the people who trafficked the young person will come looking for them. Importantly, as the noble Lord, Lord McColl, emphasised, the guardian can help with the liaison between the agencies concerned with the child, such as police, social workers, health and education. This is an issue of child protection and should be in the plans of every local authority. Guardianship is the best way to ensure that there is a positive outcome for these children who have undergone the most horrendous and degrading experiences.

The University of Bedfordshire’s child trafficking unit provides interventions for trafficked young people, with individual and group support and education. I want to share briefly the story of one such young woman, just to show that enormous progress can be made with sympathy, understanding and formal support. I first met this young woman when she was about 17 and had been trafficked from a country in Africa. Her English was poor and she was still traumatised. Two years later she came to an event here in the Cholmondeley Room in the House of Lords, where trafficked young people presented their experiences in works of art and short speeches. The noble Lord, Lord McColl, attended and I think he was impressed. He certainly took many photographs.

The young woman I am talking about spoke very passionately to about 80 people. After the ceremony she said to me, “Did you notice anything about me today?”. I said, “Not in particular”, although she was confident, attractive and charismatic. She said, “I read my speech”. Two years earlier she could not read. This young woman, with support and encouragement from guardians and advocates, was now attending college and had ambitions. I do not think I need to say any more about the importance of guardianship and advocacy for trafficked children.

Baroness Butler-Sloss (CB): My Lords, I intended to put my name to this amendment but failed to do so. I have supported each of the amendments put forward by the noble Lord, Lord McColl, and I strongly support this one. He has set out extremely effectively, supported by the noble Baroness, Lady Massey, nearly everything that needs to be said and I do not propose to say very much.

I wish to pick up on what the noble Baroness, Lady Massey, said about this being an issue of child protection, among other matters. As I said earlier this week, very often when children go missing from local authority care, the local authorities do not know that they are trafficked children. Therefore, no one is identifying them and looking for them with the special care that is required for this small group of children. They are treated as ordinary missing children who will probably come back. This is a very serious child protection issue.

The other point made by the noble Lord, Lord McColl, is so important that I shall repeat it. There is a real need for one constant person to take an interest in the child, meet the child early on, offer a mobile phone number, be at the end of a telephone and be able to answer the questions that a child with very

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limited or no English will need to ask someone who can be there. One of the sadnesses highlighted at the

Still at Risk

event that I was glad to attend yesterday is that these children have multiple social workers. We all know the underresourcing and overwork of social workers, so can they give a special degree of care to a foreign trafficked child who is not even under a care order? Consequently, they have to cope with no one person in their life.

What the noble Lord, Lord McColl, is suggesting in this amendment is crucial. We are failing a small number of grievously disadvantaged foreign children. We are talking about hundreds, not thousands. There was a particularly worrying case in Kent, where children who had been trafficked into Kent were being trafficked out by the same traffickers. Fortunately, Kent Police got hold of this, but if there had been a guardian, that guardian would have kept in touch with the child, with any luck, and would probably have been able to prevent it as they would be the one person who would know where the child was and, in any event, would be in touch with the suitable authorities to try to deal with it.

I have been talking to Barnardo’s about whether it would be prepared to offer some sort of service. The most important point that it makes is that there has to be a sufficient legal status because the majority of social services and, indeed, the NHS, talk about the confidentiality of teenage children and so on, so they will not necessarily tell somebody coming in what is going on. If the person has legal status, people have to open their records. In the absence of that sufficient legal status, a wonderful organisation, such as Barnardo’s, the NSPCC, the Children’s Society and so on, would not be able to offer that service, even if it were to be financially supported to do it.

The noble Lord, Lord McColl, has raised a very important issue. He and I were, if I may put it rather bluntly, fobbed off by the Government in 2011 and 2012 on the basis that there would be this report, and nothing is happening now. Children are going missing and are suffering the trauma of trying to cope with inadequate English through the multiplicity of agencies with which they have to deal. Quite simply, it is unjust. It is not good enough, and we as a country should be rather ashamed of ourselves.

Baroness Lister of Burtersett (Lab): My Lords, the noble Lord, Lord McColl, made a very powerful case and referred to the Joint Committee on Human Rights’ report on its inquiry into unaccompanied children. I want to underline that because we took evidence from people in Scotland with experience of the guardianship system there, and I was very impressed by what we were told. We have clear evidence there of how it can work and can support the kind of children whom we have been hearing from. I was not around when the noble Lord first raised this issue, and it is very sad that there has been this long delay. I hope that this House can now do something to rectify that situation.

Baroness Hamwee (LD): My Lords, I recall the noble Lord’s Private Member’s Bill, his previous amendment and so on. I read the Still at Risk report

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feeling almost sick. One of the things that makes me feel sick is that so often, apparently, we criminalise children for whom we should be caring because we fail to identify their situation. The point I want to make is not against guardianship; it is an extension of the argument. Those who are in a position to identify very early on that a child has been trafficked need training if they are to be alert to the situation. There is a need for additional awareness and training of all those who come into contact with children who have been trafficked. We are failing them when we fail to provide assistance from the people they perceive to be on their side.

The Earl of Listowel: My Lords, I agree with the comments of the noble Baroness, Lady Hamwee, as a volunteer who has worked with vulnerable children and alongside those working with vulnerable young people. What a privilege it is to listen to the noble Lord, Lord McColl, who has been a sustained and passionate advocate for these trafficked children; to hear the concerns of the noble Baroness, Lady Massey of Darwen, the chair of the All-Party Parliamentary Group for Children; and to listen to my noble friend, who is the chair of the human trafficking group and whose name escapes me, incredibly.

Baroness Butler-Sloss: Butler-Sloss.

The Earl of Listowel: Thank you so much. That is extraordinary. I do apologise.

Baroness Butler-Sloss: The noble Earl is too young, much too young.

The Earl of Listowel: I re-emphasise the point made by the noble Baroness, Lady Hamwee, that there needs to be training for people working with these vulnerable young people. I am very taken with the notion that there should be volunteer advocates working with them but as a volunteer myself, who has had experience of both very poor support and supervision and very good support and supervision, I suggest that the regulations should be very clear about what sort of supervision, training and support these advocates should receive. That is only fair to volunteers and it will make them much more effective as advocates and supporters of these young people. There is a great dearth of resource in children’s services at the moment and the danger is, if regulations are not clear about what the minimum requirements are, there may be a drive to produce the lowest-cost and lowest-quality advocates for these young people. I had only that comment to make. I very much support the amendment.

Baroness Benjamin (LD): My Lords, I, too, support this amendment. Anything we can do to make young people feel worthy is important. Many of these young people are suffering, through no fault of their own, and I wholly support any attempt to make them understand that there are people who care about their well-being, that there is a place to go and that there is some sort of support for them. I hope the Minister will consider these amendments very carefully.

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Baroness Howe of Idlicote (CB): My Lords, I cannot think of anybody in this room who would not be in favour of the amendment moved by the noble Lord, Lord McColl. It was brilliantly presented in one of the most compelling speeches I have ever heard. With that in mind, unless anybody is prepared to contradict me by saying that they are not in favour of what they have heard, I hope that we can proceed and hear what the Government will do about this.

Baroness Jones of Whitchurch: I am sorry to delay proceedings further. I want to say a couple of sentences. First, I thank the noble Lord, Lord McColl, for his perseverance on this issue and the extremely powerful case that he has made this afternoon. This idea of independent guardians is becoming an increasingly important theme in our debates on this Bill and it is a model that is gaining more and more credibility. My noble friend made reference to the support of the Joint Committee on Human Rights for the concept and the issue was also identified recently in a Commons Education Committee report on child protection.

In addition to the Scottish examples to which my noble friend has drawn our attention, that report identified that this concept has also been in operation in the Netherlands for some time, and there may well be lessons that we could learn from that. I do not want to rehearse all the arguments but there are very powerful ones why we should consider these sorts of policies. First, it would clearly help the children themselves. We have heard how that might happen in terms of providing quality advice and guidance. Secondly, I should like to think that such a measure would go some way to deterring potential traffickers in the future if they felt that when they trafficked children here, those children would have an alternative authority figure with whom they could associate and be aligned. It would be nice to think that the measure could deter traffickers pursuing their dastardly policies in the future. Thirdly, surely this is an area where early intervention and support could prevent children being drawn into greater social and criminal problems in the longer term. Therefore, there are all sorts of savings to be made if we intervene earlier. I do not want to extend the debate. I again thank the noble Lord and hope that he perseveres with this issue.

4.30 pm

Baroness Northover (LD): My Lords, we share the concerns of my noble friend Lord McColl for the victims of the terrible crime of child trafficking. I pay tribute to his determined and enduring commitment to these children. I am sorry if the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord McColl feel that they are being batted away in any sense; they are not and will not be. These debates are extremely important in taking things forward.

At the previous session of this Committee, the failure of some local authorities to fulfil their statutory duties towards these child victims was discussed. We heard, as we have heard again today, some heartrending accounts. I start by emphasising that these failures are absolutely unacceptable. Local authorities should ensure that these very vulnerable children receive the care and

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support that they so desperately need. In fulfilling those duties, a looked-after child who has been trafficked should be allocated a social worker by the local authority, as noble Lords have heard. The social worker should be responsible for planning the care of the child, ensuring that they are safely accommodated and that their welfare is supported.

The social worker should plan to ensure that all the needs of the child are met. They should take particular account of the specific needs of a trafficked child, including planning to prevent the child going missing from care, as the noble and learned Baroness, Lady Butler-Sloss, said, providing safe and secure accommodation and ensuring that the child understands any procedures in which they are involved. Throughout this they should treat the child as a victim of crime.

The child should also be allocated an independent reviewing officer who would, among many responsibilities, ensure that the child is aware of the implications of their immigration and asylum status and that the local authority considers these as part of its plan to meet the child’s needs. Further, as noble Lords have said, the child would have the right of access to an independent advocate responsible for accurately representing the child’s wishes and feelings. Advocates can support children on all issues, not just their care plan. Social workers have a duty to tell all children about their right to an advocate. Advocates can and do support children of all ages, even the very young children to whom my noble friend referred. The child’s needs and interests are best protected when these professionals work well together and fulfil their statutory responsibilities.

Legal status, perhaps unfortunately, is not the point. Local authorities have a statutory duty to assess and meet the needs of trafficked children. The issue is one of practice and, as my noble friend Lady Hamwee pointed out, trying to ensure that what should happen legally actually does happen.

The noble Baroness, Lady Lister, and others mentioned Scotland, and I inquired as to whether this had solved the problem. I understand that the pilot of guardians in Scotland has, thus far, had mixed results. I can reassure the noble Baroness, Lady Jones, that we are keeping in touch with the Scottish Government to see what lessons we can learn from them, but it seems again to come back to practice; even setting the arrangements in place has not cracked it in Scotland.

I realise that my noble friend Lord McColl does not accept this point but we continue to feel that adding another person in the form of a child trafficking guardian to those already working in the interests of the child could add another layer of complexity. There could be a real danger of confusion about the role of social workers, independent reviewing officers and the new guardians. The current system is clear about who is responsible for taking decisions about how best to support the young person. However, we accept, as I said on Monday, that this is clearly not working out in practice as it should do. Noble Lords will know that the statutory framework includes specific duties to consider the particular needs of the trafficked child and, for example, keeping the child safe from their traffickers.

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From November, every Ofsted inspection report must say how local authorities are doing in reducing the number of, and supporting, children who go missing. It is therefore vital to focus on the reasons for the failure of some local authorities to provide adequate support to trafficked children, rather than perhaps to conceal those failures below further operational layers.

Noble Lords have made reference to the Still at Risk report. They may have noted that several of its recommendations highlighted that all agencies need to implement properly statutory and practice guidance. The structures already exist to provide the support required by trafficked children if the relevant authorities put them into effect. The report showed that effective multi-agency working is an essential part of providing the right support.

I said on Monday that we have already put in place a major programme of reform to transform the care system. We want to see stable and permanent placements, high-quality education and health support, and better support for care leavers as they transition to adulthood. We will ensure that, as we implement these programmes, we will take account of the particular needs of trafficked children. As I said on Monday, we have already published revisions to the statutory guidance on missing children, which strengthen advice on meeting the needs of child victims of trafficking. However, I repeat that we recognise the strength of feeling and the strong arguments around this issue. As I said on that occasion, we would like to take this issue away and I invite further discussions to try to take this forward, drawing on every noble Lord’s expertise. In the light of that, I hope that my noble friend will be willing to withdraw his amendment.

Baroness Massey of Darwen: Perhaps I may ask two questions. First, I cannot accept that a guardian or advocate would add an extra layer to the system in supporting trafficked children. The guardian or advocate is supposed to link the layers together and support the child. Secondly, will the Government be talking to Barnardo’s, the NSPCC, the Children’s Society, the University of Bedfordshire and ECPAT in order to hear first hand the experiences of dealing with trafficked children?

Baroness Northover: I heard what noble Lords said about feeling that the guardian would cut through those layers; my noble friend Lord McColl put that case extremely cogently. I should like to reassure noble Lords that we are seeking to tackle this problem as effectively as possible. In some ways, it is perhaps slightly dispiriting to hear that it has not been cracked by the Scottish model. It looks to me as though we need to look further into why this is not working. That is why it is important that we meet up for a discussion, and it is vital that the organisations that the noble Baroness referred to feed in their expertise so that we can best take this forward.

Lord McColl of Dulwich: I thank the Minister very much for her very careful speech, and I am reassured that she is going to have a lot of discussions. I hope that we can all get together to talk about this issue in some detail. She mentioned that the social worker

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should be the key. If it was one social worker who was responsible for one child and stayed with that child, that would be fine, but the problem is that the children have umpteen social workers. They never know who is coming next and they then have to repeat their story over and over again.

I certainly do not accept that this proposal will add another layer of bureaucracy to the organisation. We have already had an 18-month delay over this and I can see that, with the existing bureaucracy, it will be another 18 months before something effective is done. Meanwhile, hundreds of children are going to be in jeopardy. Therefore, I welcome what the Minister says and look forward to meeting her and all those who have been speaking on this issue and who have done so much work in this field. I thank everyone for their contributions today. I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 43

Moved by Baroness Howarth of Breckland

43: After Clause 9, insert the following new Clause—

“Privately fostered children

In section 66 of the Children Act 1989 (privately fostered children), at the end of subsection (1) insert—

“(c) the relative exemption does not apply for foreign national children whose parents are not residing in England or Wales”.”

Baroness Howarth of Breckland (CB): My Lords, Amendment 43 concerns another very specific group of children—those who are privately fostered but who come from overseas. In some ways, this is a probing amendment to see whether the Government can revisit the regulations around these privately fostered children.

Currently, the number of children in this group in the UK is unknown. The majority will have arrived on visitor visas and will have overstayed. Most will be attending school and will be registered with health services. The adults caring for them have a duty to notify their local authority that they are caring for the child but, as the child is a visa-overstayer, no one does it. Given their other pressures, the majority of local authorities do not proactively look for these children, and schools do not check the visa status of children arriving mid-year or joining in years two to six.

The close relative exemption includes all relatives described under the Children Act 1989 and it exempts them from assessment by the local authority. The issue is that all carers claim to be an aunt or uncle. That is impossible to verify in most cases, and local authorities accept this as it reduces their workload. We should keep in our hearts Victoria Climbié as we think about this issue because that case, too, involved direct relatives.

The child protection issue is fairly straightforward. These children are in the UK without anyone who has legal parental responsibility. No one has overseen their placements and no one has asked about the child’s wishes or feelings. The real crunch comes when these children reach 18, having been brought up here

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from childhood and English being their one language. They are probably on their way to further education. One young person for whom I was asked to advocate by Voice was in this exact position. Only when preparing to go to college did he find out that he was facing the alternative: deportation as an illegal immigrant. There is a range of these children. It is in their best interests to know their immigration status and to determine their future as soon as it is known, rather than when they reach 18. The organisation Children and Families Across Borders believes that the Home Office will accept this amendment.

There are real practice issues. We have spoken often about practice and its difficulties but in this matter, while the border agency and the children’s services are both governmental agencies and should be working together, the organisation has found that there tends to be little if any exchange between the two at either policy or working level. There seems to be no sense of corporate responsibility within government for the children who have reached British soil. The children’s services focus on the children’s well-being and rarely take the step needed to address durable, long-term solutions. They look at it in the narrow context of pathway planning, which is good for other children who are from this country.

4.45 pm

Furthermore, valuable information about the child, which could contribute to a comprehensive review of a durable solution in his or her best interests, is often withheld by social workers on the basis that either divulging the information could undermine the relationship of trust developed with the child, or a perception that UKBA’s treatment of such cases is simply driven by immigration controls.

Decisions about a child returning to join family members in a third country should be implemented within a specific timeframe once all safeguards are confirmed to be in place. There is a useful model for this from 20 years ago, related to the return of Vietnamese boat people. I have given documents to officials to save time here; I am sure that your Lordships would not want me to be reading the whole of them in this Committee. Alternatively, there should be a decision for a child to remain indefinitely in the UK, followed by prompt child welfare assessment and clarification of the child's immigration status. The child could then continue in the private fostering situation with proper security and, probably, without further intervention from social services. This may indeed need legislation and I beg to move.

The Earl of Listowel: My Lords, I want to ask a brief question of the Minister, related to this matter. My noble friend alluded to the terrible case of Victoria Climbié, in which Victoria was privately fostered. The noble Lord, Lord Laming, who was charged by the Government to publish an inquiry into her death, was very concerned about a lack of awareness of private fostering—about how we can register private fosterers and make it safer for children to be in that position of being cared for by an auntie and uncle, while not being registered as a child in care.

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There has been work in the past 10 years to normalise private fostering and raise awareness about it. I know that the British Association for Adoption and Fostering has done work to raise awareness among private foster carers so that they should come forward and, I believe, give their names to be registered by the local authority. I would be grateful to know from the Minister what progress has been made in recent years in terms of the numbers of those private fostering carers coming forward. Perhaps he could write to me, along with any other information that he can send me on what is being done to reassure us about the safety of children in private fostered arrangements. I hope that is helpful.

The Countess of Mar (CB): My Lords, I support my noble friend Lady Howarth of Breckland. For many years, I was a lay member of the immigration tribunal and I remember seeing a number of young people go through the awful process of asylum appeals when they got to the age of 18. They did not understand what was going on. In many cases, we allowed them because they had been here for so long and had become used to the country. It would have helped them enormously if they had had support earlier in their lives, as my noble friend is suggesting.

Baroness Northover: My Lords, here we are addressing another group of potentially vulnerable children, as the noble Baroness, Lady Howarth, pointed out. They are foreign-national children who are living in this country while their parents reside elsewhere. We recognise that the amendment seeks to improve safeguards for children privately fostered from abroad. We sympathise with that intention.

We fully accept that local authorities should check on private fostering arrangements when children are living apart from their close family, and current legislation provides for this. We recognise that it is sometimes difficult to establish if a family relationship is genuine, as the noble Baroness, Lady Howarth, made very clear, especially where a carer is falsely claiming to be a close relative to avoid the requirement to notify the local authority of a private fostering arrangement. This raises a potential safeguarding issue.

However, we are not convinced that the way forward is to apply the private fostering arrangements to all foreign national children who live here without their parents. This would extend the arrangements to a large number of cases where children are safely looked after by close relatives. However, we agree that this is an important issue, as children from abroad are in a particularly vulnerable position. It remains crucial that professionals who work with children from abroad, including border staff, schools, health professionals, housing officers, et cetera, can spot private fostering when they see it and notify the relevant local authority.

The current private fostering guidance asks local authorities to undertake awareness-raising activities with agencies, such as schools, to enable professionals to encourage private foster carers and parents to notify the local authority. Front-line professionals are also encouraged to notify the local authority of a private fostering arrangement that comes to their attention

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where they are not satisfied that the local authority has been, or will be, notified of the arrangement, so that the local authority can check that the arrangement is safe and suitable.

We are reviewing the school admissions guidance for children from abroad and are aiming to publish a revised version in January 2014. We will also shortly be publishing revised guidance on safeguarding in schools. The new guidance will specify schools’ statutory duties in respect of safeguarding, provide guidance on roles and responsibilities, including making referrals to child protection services, and indicate where to find up-to-date guidance on particular issues.

In addition, we have a project under way looking at the requirements on local authorities and the role of other agencies and services with a view to focusing efforts and strengthening the response to children most at risk. We will be talking to relevant partners and agencies, such as the Home Office, the British Association for Adoption and Fostering, Children and Families Across Borders, Ofsted and local authorities, to identify what targeted action might be taken to improve practice in local areas. There are a number of issues that we are looking at, and I am happy to share them with the noble Baroness.

An important issue is whether it is better to resolve the immigration status of children and return them to their home country as soon as possible after their arrival in the UK, rather than leave it until they reach the age of 18, by which time their ties with their home country have been greatly reduced. The current practice is to consider the needs of each child on a case-by-case basis and carry out an assessment of what is in the child’s best interests. The child and their social worker have a central role in this assessment, and contributions are usually also sought from other relevant agencies.

We have some sympathy with the argument about early return but, referring to other debates we have had, we need to be aware that many of these children may be vulnerable and have arrived in the United Kingdom having suffered very difficult and sometimes traumatic experiences. It is often the case that their parents cannot be traced or that the reception arrangements in the country to which they would be returning might be inadequate. This has meant that in practice, with the exception of transfers to other European Union countries, the UK rarely enforces the return of unaccompanied children to any country. The important issue is to try to work out what is in the best interests of the child.

I would be happy to provide any more details on this to the noble Baroness. I welcome her expertise feeding in as we consider this. I hope that in the mean time she will be content to withdraw her amendment.

Baroness Howarth of Breckland: My Lords, I am grateful for the noble Baroness’s full reply. The only point that I would pick up is that sometimes social workers will decide to allow children to remain indefinitely without taking action, simply because the social worker is anxious that if they do anything the child will immediately be deported. It is that working together between all the agencies and organisations, including education and the Home Office, and making sure that

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the child’s welfare is at the centre of any decision, that needs to be taken forward. Otherwise, people make decisions that they think are in the best interests of the child but, in the long term, turn out to be disastrous for their growth. I beg leave to withdraw the amendment.

Amendment 43 withdrawn.


Amendment 44

Moved by Baroness Massey of Darwen

44: After Clause 9, insert the following new Clause—

“Support for family and friends carers when children are not looked after

(1) Each local authority must make arrangements for the provision within their area of family and friends care support services, including—

(a) counselling, advice and information; and

(b) such other services as are prescribed, in relation to family and friends care.

(2) The power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support.

(3) At the request of any of the following persons—

(a) a relative, wider family member or friend caring for a child in any of the circumstances (hereinafter referred to as C) set out in subsection (4) below;

(b) a parent or other person with parental responsibility; or

(c) a child living with C in circumstances set out in subsection (4) below; or

(d) any other person who falls within a prescribed description, a local authority must carry out an assessment of that person’s needs for family and friends care support services.

(4) The circumstances referred to in subsection (3)(a) and (c) are—

(a) the child comes to live with C as a result of enquiries or plans made under section 47 of this Act;

(b) the child comes to live with C following an investigation under section 37 of this Act;

(c) C has been granted a residence order or a child arrangements order to avoid the child being looked after, within care proceedings on the child or following the accommodation of a child;

(d) there is professional evidence of the impairment of the parents’ ability to care for the child; or

(e) the parent is dead or in prison.

(5) A local authority may, at the request of any other person, carry out an assessment of that person’s needs for family and friends care support services.

(6) Where, as a result of an assessment, a local authority decide that a person has needs for family and friends care support services, they must then decide whether to provide any such services to that person.

(7) If—

(a) a local authority decide to provide any family and friends care support services to a person, and

(b) the circumstances fall within a prescribed description, the local authority must prepare a plan in accordance with which family and friends care support services are to be provided to him, and keep the plan under review.

(8) The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of family and friends care support services in accordance with plans and reviewing the provision of family and friends care support services.

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(9) The regulations may in particular make provision—

(a) about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;

(b) about the way in which a plan is to be prepared;

(c) about the way in which, and the time at which, a plan or the provision of family and friends care support services is to be reviewed;

(d) about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;

(e) as to the circumstances in which a local authority may provide family and friends care support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);

(f) as to the consequences of conditions imposed by virtue of paragraph (e) not being met (including the recovery of any financial support provided);

(g) as to the circumstances n which this section may apply to a local authority in respect of persons who are outside that local authority’s area;

(h) as to the circumstances in which a local authority may recover from another local authority the expenses of providing family and friends care support services to any person.

(10) A local authority may provide family and friends care support services (or any part of them) by securing their provision by—

(a) another local authority; or

(b) a person within a description prescribed in regulations of persons who may provide family and friends care support services, and may also arrange with any such authority or person for that other authority or that person to carry out the local authority’s functions in relation to assessments under this section.

(11) A local authority may carry out an assessment of the needs of any person for the purposes of this section at the same time as an assessment of his needs is made under any other provision of this Act or under any other enactment.

(12) Section 27 (co-operation between authorities) applies in relation to the exercise of functions of a local authority under this section as it applies in relation to the exercise of functions of a local authority under Part 3.”

Baroness Massey of Darwen: My Lords, my amendments in this group address the issue of kinship care. Amendment 44 concerns:

“Support for family and friends carers when children are not looked after”.

Amendment 45 addresses carers’ allowances and financial support. I should ask for the Committee’s patience in my speaking to these amendments; some of these issues are rather complex and all are important.

Both amendments seek greater support for family and friends carers. Last week, I described such people as heroes—and so they are. They take over the care of children, very often in the direst circumstances, and lack the support that they need and deserve. I am grateful to the Kinship Care Alliance, which includes many organisations concerned with children’s families’ rights, for its tireless and highly professional support for family and friends carers, and for its determination to seek a better deal.

The House has discussed family and friends carers many times before. Some colleagues may remember the discussions, which have notably taken place in Bills concerned with welfare. Ministers from both sides of the House have been sympathetic, and some adjustments

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to the situation have been made, but not enough. I used to meet kinship carers regularly when I chaired the National Treatment Agency for Substance Misuse, because many of the carers looked after children of a relative who had a drug or alcohol problem. I became aware of what a brilliant job these carers do, often without or with very little support, and often to the detriment of their own physical, emotional and mental health, particularly if they are older carers such as grandparents. Kinship carers take over the care of young relatives because they want the best for them, often in an emergency, such as the sudden death of a child’s parent. I remember a grandmother in a London borough whose daughter died suddenly late at night, and who took over caring for three children aged between one and 10 in a one-bedroom flat. “You know what they call us?”, she said, “The midnight grannies”.

Two key issues underline what I have to say. One is that the outcomes for children who are looked after by a relative are better than those for children looked after outside the family. Secondly, such care saves an enormous amount of money. The cost of a place in independent foster care is £40,000, and the average cost to the state of care proceedings is more than £25,000. However, research indicates that most family and friends care arrangements—86%—are initiated by carers themselves, rather than social workers seeking them out.

An estimated 300,000 children are being raised by relatives and friends. Only an estimated 6% of children who are raised in family and friends care are looked after by the local authority and placed with approved foster carers. By far the majority live with their relatives and friends outside this care system, either with the parents’ agreement, or under a residence order or special guardianship order granted by the courts. Despite the lack of support, children in the care of family and friends do better in terms of attachment. They have a sense of belonging, a sense of safety and the confidence that they will not be moved about. This results in better educational outcomes and fewer behavioural problems. There is a greater likelihood of an ethnic match—88% as opposed to 78%.

5 pm

Kinship care may well be the best thing for children where possible and it isconsistent with their rights under the European convention to support family life. It is also an increasingly practical option for children unable to live with their parents, given the record numbers of children-in-care proceedings and the severe shortage of unrelated foster carers, which result in many children in care experiencing temporary placements, being split up from siblings and having to move from their school and family networks. Yet many kinship carers are under severe strain. In a recent survey, 95% said that they experienced at least one unmet need for support and most mentioned several. More worryingly, carers who were raising the most difficult children were receiving no support at all.

According to the experience of the Kinship Care Alliance in advising thousands of families and friend carers every year, this lack of support is due to three major factors. First, they are not entitled to local

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authority financial or other support for these children—for example, help with contact arrangements, bereavement counselling or challenging behaviour. If a child is looked after by a local authority, the carer must be approved as a foster carer and they are entitled to a fostering allowance. However, 94% of kinship carers are not in that category. If a child is not looked after by a local authority, then financial support is discretionary. Yet carers often face enormous costs—for example, the need to give up a job, to adjust their homes, to buy extra equipment and clothing for the children, as well as possibly some childcare. I have also heard of cases where kinship carers have had to pay enormous sums of money in legal bills to secure the child’s future with them. Although there is a duty on local authorities to establish a special guardianship support service, similar to adoption support, this does not give an individual carer the right to a specific service. Moreover, there is no equivalent support service for children in kinship care under a residence order or no order.

The Deputy Chairman of Committees (Lord Geddes) (Con): My Lords, with apologies to the noble Baroness, a Division has been called in the Chamber. The Grand Committee stands adjourned for 10 minutes, to resume at 5.12 pm.

5.02 pm

Sitting suspended for a Division in the House.

5.12 pm

The Deputy Chairman of Committees (Lord Geddes): My Lords, it is now 5.12 pm. I apologise again to the noble Baroness for interrupting her mid-flow. The Grand Committee is now resumed.

Baroness Massey of Darwen: It was quite a welcome break in this long speech. I am moving Amendment 44 and speaking to Amendment 45. They support financial and other support to family and friends carers. I was summarising briefly the benefits to children of such care and the hardships suffered by family and friends carers. Although there is a duty on local authorities to establish a special guardianship support service, similar to adoption support, this does not give an individual carer the right to a specific service. Moreover, there is no equivalent support service for children in kinship care under a residence order or no order. A survey of family and friends carers shows that those with special guardianship orders are the most satisfied with the legal order compared to those who do not have such orders.

Secondly in the list I started earlier, despite the Government’s 2011 guidance on family and friends care, most local authorities are not proactive in supporting family and friends care. There is no dedicated family and friends care team, for example, in most local authorities. This means that the carers and children are dealt with—here we go again—by different teams in children’s services, who may not have specific expertise.

The third factor is that there are no official statistics published on the number of children in family and friends care either nationally or locally. One analysis

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by the University of Bristol excludes friends care, for example. Local authorities do not routinely collect such data so it is difficult to see how they can design and finance such services. The 2011 guidance is clear: it requires all English local authorities to have a family and friends care policy stating what support they would provide by September 2011. Sadly, much later after that deadline, more than 30% of local authorities still have not published a family and friends care policy. The guidance does not change the legal position but while local authorities have to provide support for looked-after children placed with family and friends carers, which is 6% of children, they do not have to provide support for the 94% of children in family and friends care who are classified as not looked after.

I am aware that, in the climate of financial restrictions, local authorities are seeking to reduce service provision and that non-statutory services are being cut. My Amendment 44, which mirrors the special guardianship support service required, seeks to redress the shortcoming by requiring local authorities to provide support to meet the identified needs of children being raised by family or friends under a private arrangement or residence order. The circumstances as to when this would apply restrict the support to children who would otherwise be in the care system because they are at risk or their parents are incapacitated, dead or in prison. I hope the Minister will be able to address these concerns and meet with the Kinship Care Alliance to discuss the urgency of this situation.

Amendment 45 seeks to insert a new Section 77A into the Social Security Contributions and Benefits Act 1992. It aims to ensure that family and friends carers receive a basic financial allowance from central government to support them in raising a child who cannot remain with their parents and would otherwise be in the care system. Support would be restricted to cases of children whose parents are incapacitated, dead or in prison. The amendment would provide the mechanism for local authorities to provide discretionary support to meet more effectively the assessed needs of children in family and friends care under residence orders or where there is no order at all. However, this does not address the additional costs to family and friends carers of raising a child who is not their own.

Of course, the legal liability for maintaining children lies with the parents at all times, even if their children are cared for by someone else. At no point does legal liability transfer to family and friends carers, except on adoption, but these carers often have existing financial responsibilities—for example, caring for an elderly relative or their own existing children.

They may apply for child benefit, although there are sometimes problems in transferring this from the parents to the carer. They may apply for tax credits according to their means, and an allowance for the child where they are in receipt of income support. However, there is no recognition in the benefits system of the additional costs of raising a child who is not their own. Caring for a child, according to the Fostering Network, is calculated to be 50% higher than the cost of caring for a birth child. This is partly due to emotional distress in the children, maintaining contact with parents and other family members and engaging

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with social workers and health and education staff. This is why foster carers receive specific allowances from local authorities, paid at substantially higher rates than state benefits and tax credits.

Briefly, there are four key financial issues for family and friends carers in raising a child outside the looked-after system. First, there is the immediate cost of a child coming to live with a carer, often, as I said earlier, in an unplanned or emergency situation. Secondly, there are the costs of applying for a legal order to provide the child with security and permanence. Thirdly, there is the lost income resulting from the carer reducing their working hours, leaving paid work, forgoing career opportunities or losing pension rights. Finally, there are the actual costs of raising a child, which may include a larger home, higher utility bills and so on.

When special guardianship legislation was passed, it was envisaged that many foster carers would apply for special guardianship orders for older children in their care. There have been cases of successful orders in such situations but many foster carers are reluctant to apply for such orders because they fear that the financial support received would be inadequate, as compared to the mandatory support they and the child would receive as foster carers. It is likely that more foster carers would apply for special guardianship orders if they could be guaranteed continued financial support. The regulations should be amended accordingly. I hope that these two amendments will be favourably received by the Government, so that family and friends carers get a much better deal.

Baroness Butler-Sloss: My Lords, I support these two amendments. I am either patron or president of the Grandparents’ Association and I have a particular example of a friend of mine, who took over the care of her goddaughter at very short notice. She would otherwise have gone into care. The social workers encouraged my friend to keep the child and to take a residence order. Eventually she got a special guardianship order, which she has at the moment, but once she got the residence order she discovered that the social workers were basically saying, “That’s fine; now we don’t have to pay you, which is a very good reason why we didn’t want you to be a foster mother”. This is not as it should be.

It is not unusual for this to happen. Family and friends who are carers are quite often treated this way. Because they are prepared to care for one of their own family or somebody close to them, it does not become the requirement of the local authority to give them any support. I battled for this friend of mine to have some support and they gave her a small amount as a sort of honorarium. It really was very small indeed. It happens that some quite young grandparents or other carers, having achieved a good position in a job and a comfortable lifestyle, suddenly find themselves, after a daughter or daughter-in-law dies, taking over the care of a child or children at short notice. Their standard of living drops dramatically, often because they can no longer keep their job. They are therefore losing their comfortable lifestyle. Not only do they have an extremely exhausting time caring for their grandchildren, who of course they love dearly. It is also very trying because

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they find themselves short of money in a way that they had not been when they were ordinary grandparents and out at work.

It is a real need that the noble Baroness, Lady Massey, has set out with such care and the Government really should be looking at it, because in the majority of cases local authorities will not pay if they do not have to. Many grandparents in the association with which I am connected are in the very position that I have just described.

Lord Northbourne (CB): My Lords, I support the noble Baroness, Lady Massey, and my noble and learned friend Lady Butler-Sloss on this issue. I declare an interest as I am also a member of the Grandparents’ Association. One point that my noble and learned friend did not make is that there is a history of some social workers going round at 2 am with little Johnny and saying, “Are you prepared to take him in? We are otherwise going to take him into care”. Of course the grandparent takes him in and then she has lost her money.

Baroness Drake (Lab): My Lords, I support my noble friend Lady Massey’s amendments because it is worth restating that we are addressing here a community of an estimated 300,000 children. It is not a minor group of children; this is a major group for whom friend and family carers are caring. They are being raised by these carers, in many instances as an alternative to being in the care system. In most instances, that produces better outcomes for these children than entering the care system and with huge savings to the state. Yet many of them get too little help and too little support. Therefore, on the one hand as a society we depend on them to protect many children, but we reciprocate with such limited support.

Research reveals that a minority of kinship carers receive financial or practical support from their local authority. Only the foster carers—about 5% of all kinship carers—are entitled to financial support, as my noble friend said. For other carers, the support is discretionary. Yet kinship and family and friends care is the most common form of permanency for children who cannot live with their birth families. Research from Joan Hunt at the University of Oxford shows that there is no relationship between a child’s needs and whether they receive support from the local authority, and that those with the highest needs may in fact be less likely to get any help. This disparity between those needing support and those getting support is reinforced by research findings, which suggest that most family and friends care arrangements—86%—are initiated by the carers themselves rather than the social workers, so giving rise to some of the situations that the noble and learned Baroness referred to a moment ago.

However, it makes no sense at all that such vulnerable children and their carers should face such a lottery when it comes to support. Kinship carers have done the right thing by taking in a child who cannot live at home but then they are often left to struggle alone. However, the children for whom they care have similar

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high needs to those of the children looked after by the local authority. As a survey conducted by Grandparents Plus found, 45% of kinship carers were looking after children who had experienced abuse or neglect, 44% cared for children who had experienced parental drug or alcohol misuse, 22% were in kinship care because of parental illness, mental illness or disability, and 21% because of domestic violence. Therefore, despite the importance of these placements and the experience of the children, they are often left without adequate support, many under great strain.

Notwithstanding the existing statutory guidance on providing support for carers, to which my noble friend Lady Massey referred in great detail, I reiterate that the legal position remains that, while local authorities have to provide support for looked-after children, they do not have to support the remaining vast majority of children in family and friends care who are not looked after. These amendments would begin to address that failure by putting the onus on local authorities to provide support to meet the identified needs of children who cannot live with their parents and would otherwise be in care.

Research also reveals that many of these grandparents and kinship carers are living in poverty or on low incomes. Analysis of census micro-data from 2001 found that 71% of children in kinship care were experiencing multiple deprivations. I can put it no better than a powerful quotation from a study called The Poor Relations? By Elaine Farmer, Julie Selwyn and others from Bristol University:

“We found that many informal kinship carers lived in grinding poverty, which wore them down and reduced their quality of life. Yet, this was often a consequence of caring for the kinship children—many had given up good jobs to take the children … or in the case of retired carers, had only their pensions to live on … Most carers were under significant strain bringing up the kinship children on low incomes, often when they themselves were unwell”.

Yet these carers face significant additional costs, as eloquently detailed by my noble friend. An example is the widowed grandmother living on a pension raising a six year-old grandson due to the mother’s drug and alcohol difficulties, quoted in the Grandparents Plus report Too Old to Care:

“All my child benefit, £20 a week, goes on my bus fares and his bus fares to get him to school and back. I did say to him about moving schools but he just got so upset. He’s had enough people in his little life so I just keep taking him to school”.

5.30 pm

The Fostering Network found that extra costs are rooted partly in the emotional distress the children have experienced, the challenging behaviour, maintaining contact with family members and engaging with social workers, health and education staff. Those costs are faced by family and friendship carers too, but an overwhelming majority—94%—of family and friend carers are not in the category entitled to financial support. For them it is discretionary, at a time when most local authorities are reducing service provision. Carers are entitled to apply for child benefit and tax credits and for an allowance for the child if they are in receipt of income support, but I stress again the point made by my noble friend that there is no recognition in the benefits system of the additional costs of raising

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a child who is not your own. Such carers may well be impacted by the benefit cap. Many will have lost their jobs, an issue that we shall return to on Amendment 267.

This amendment would enable family and friends carers to receive a basic financial allowance to support them to raise a child who cannot remain with his or her parents and who would otherwise be in the care system. I was reflecting on a point that my noble friend Lady Massey made. She said that some of these people are heroes. I was trying to think of a Churchillian quote that captured that, and I came to the view that so many of these carers are the people who have little, give the most and end up receiving the least.

The Earl of Listowel: I rise briefly to support these amendments and to make three points. First, above all, children who have experienced trauma—indeed, all children—need parents who stick with them through their lives. Children who have experienced abuse over periods of time need carers who stick with them over the years and who are reliable and consistent.

Last night, I was at a meeting and met psychiatrists from all over the world who have just published a book on the mental health of looked-after children. The final point in the editor’s chapter in the book was that he encouraged all clinicians always to remember that the most important thing to help these children recover from past trauma is to enable them to have relationships with people who care about them and stick with them. Family relationships—long-term committed relationships—are what they need. If they cannot find that at that particular time in their lives then, as a clinician, you need to equip them to be able to make and keep those kinds of relationships. It seems to me that that is much more likely to happen in these kinship care models than in foster care, although it often happens there too.

Secondly, good social care interventions can make a difference. The most popular intervention that foster carers talk to me about is support to understand how they manage the behaviour of their young people. All young people can, at different times in their lives, be difficult to manage, but young people who have been traumatised, abused or neglected will often display very difficult behaviours. In fact, in 2004 a report from the Office for National Statistics on the mental health of looked-after children highlighted that those in foster care had, I think, a 40% rate of mental disorder compared with, I think, a 5% rate in the general population. The rate for those in residential care was 70% or so. A very high percentage of those mental disorders are conduct disorders, things such as troubling behaviours from young people. Carers need support to understand and manage those behaviours, and they tell me they really appreciate it.

They also need to be connected with other carers with the same experience. When foster carers are helped to connect regularly with other foster carers in the same position and the same job, they value being part of a community of carers and being able to share experience and learn from it.

Finally, I take this opportunity to highlight the letter sent to me by the noble Lord, Lord Nash, regarding the recruitment and retention of child and

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family social workers. It is key to this area, to trafficked children and to children returning from care. In this brief debate, we have heard examples of poor and variable practice in child and family social work. I know that several noble Lords trained and practised as social workers. It is enormously encouraging that, in recent years, in the previous Government and in this Government, there has been a real commitment to raising the professional status of child and family social work—to raising entry requirements and training standards. In his letter, among several other things, the Minister drew my attention to a review by Sir Martin Narey commissioned by the Government into the initial training of social workers, which is being published in January, and to new data-collecting on social workers on the front line in local authorities, so that we will have a better understanding of how well we are retaining the new social workers that we are recruiting. I draw that to your Lordships’ attention because I think it is important.

I also want to commend the Government for taking this consistent stance towards social work, which in the past has been far too neglected. One of the key ingredients for getting better outcomes for children, whether they are in kinship, foster or other settings, is to get support from the right professionals, and I hope we are moving in that direction now. I strongly support these amendments.

Lord Ponsonby of Shulbrede (Lab): My Lords, I wanted to speak briefly in support of these amendments. My noble friend Lady Massey has set out the framework and how important it is statistically, but I was sitting as a family magistrate only last week and I thought it might be interesting for the Committee to hear the decisions that we were invited to make as a court. The scenario was of a two year-old boy in a successful fostering arrangement. His uncle had come forward with his wife. They already had three children and they were willing to take on the boy. That would put them in the situation of having four children under the age of six in a two-bedroom flat in London. All parties supported the arrangement that was to be made by the court and the decisions that we were invited to make as a court were to finalise the financial arrangements between the local authority and the carers. There was a bit of brokering and toing and froing on what those payments were to be. As far as I know, they were discretionary but nevertheless they were offered. As I say, it was a bit of a haggle but a figure was agreed for the kinship arrangements to go ahead.

The second decision we were asked to make was whether to put in place a special guardianship order. This was opposed by the local authority but we decided to put it in place in any case, very much for the reasons that my noble friend has said. We believed that it would help the carers to have the support of the local authority for the first 12 months. That was no reflection on their ability to be good parents—in fact, we were sure they would be—but we wanted to help them. So we went against the local authority’s wishes on that particular decision. The other decision we made was to put in place the contact arrangements for the mother. The mother was a recovering drug addict. She was in

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court and we wished her well. We arranged that she would have contact on a yearly basis and that can be reviewed in due course.

Another issue that we were invited to address was the housing arrangements of this family. As I said, they would have four children in a two-bedroom flat. There was really very little we could do about that other than include a sympathetic paragraph in the judgment, urging local authorities to review their situation sympathetically. Realistically, they were looking at a two or three-year wait for a transfer. Nevertheless, that was something we put in the judgment. The final thing we put in, which we thought about very carefully, were the transfer arrangements. As I said, this particular little boy had been in a successful fostering arrangement where he had blossomed for two years and now he was moving to another arrangement. Obviously, however well-meaning everyone was, it would be a difficult transition arrangement for the boy.

The point that I wanted to make is that all the parties supported this. The local authorities put extra money in and the mother agreed to the arrangement, even though she was losing her boy and the kinship carers would have to take the child on. This is a good solution for all concerned, and if it can be put on a more statutorily substantial footing, I think that that will be to the benefit of all concerned.

Baroness Northover: My Lords, I thank the noble Baroness, Lady Massey, for her amendments, which cover support and services for family and friends carers. I commend her for the motivation behind the amendments.

We fully recognise the valuable contribution made by family and friends in caring for children who cannot live with their parents. We owe them a great deal, as the noble Baroness so eloquently showed. We have heard a great deal about the potential benefits of family and friends carers not only from the noble Baroness, Lady Massey, but from the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Northbourne, the noble Baroness, Lady Drake, and the noble Lord, Lord Ponsonby.

I found myself thinking that sometimes women like me are described as the “sandwich generation”. We look after our children and our parents, but if our children then come back and bring their children for us to look after, that perhaps makes us a double-decker sandwich generation. I hope that my children do not do that.

Noble Lords will be aware that family and friends care, or kinship care, covers a wide range of legal arrangements and, where appropriate, as we have heard, assessments are already in place for putting in the appropriate financial or practical supports. The Children and Young Persons Act 2008 amended Section 17 of the Children Act 1989 so that local authorities could provide regular and long-term financial payments to families caring for children where they judged this to be appropriate. This provision, passed under the previous Government and made discretionary, came into force in April 2011.

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In order to clarify the role of local authorities, the Government released statutory guidance on family and friends care, and this also came into force in April 2011. It aims to ensure that children and young people receive the support that they and their carers need to safeguard and promote their welfare.

We are aware that family and friends carers often struggle, as we have heard, to obtain information that will assist them in their caring role, particularly when they have taken on the care of a child in an emergency. That is why the family and friends statutory guidance makes it clear that local authorities have a duty to ensure that their family and friends policy supports the promotion of good information about the full range of services for children, young people and families in the area and highlights the availability of advice from independent organisations.

However, we are aware that the quality and quantity of local authority policies in this area are not at the level they should be. That is why we currently have a programme of work to reduce the variation in practice within and across local authorities. This includes sector learning days for local authorities that will support the development of local policies and guidance as well as clarify the primary legislation and how it is being implemented.

I thank the noble Earl, Lord Listowel, for commending this Government and the previous Government for their support for the vital social work profession.

It is also very important that family and friends carers understand what support services they are entitled to, so the department will be developing an information resource containing the basic facts, entitlements, services and advice that are available to them. This resource will not only increase the knowledge base of carers but will raise awareness of front-line practitioners, such as GPs, and those in education and childcare settings, who are often the first point of contact for new family and friends carers.

5.45 pm

The new Ofsted framework, which I referred to in the last group of amendments, will include a new focus on family and friends carers. One of the criteria to be judged as good includes showing that the recruitment, assessment, training, support, supervision, review and retention of foster carers, including kinship carers, connected persons and, as appropriate, special guardians ensures that families approved are safe and sufficient in number to care for children and young people with a wide range of needs.

The noble Baroness, Lady Massey, asked if I would be happy to meet the Kinship Care Alliance. Certainly I or the relevant Minister within the department will be happy to do that. I would like to thank it, through the noble Baroness, because much of the revised statutory guidance on family and friends carers was based on its suggestions.

I hope that I have given noble Lords sufficient reassurance that the Government are committed to and working towards supporting family and friends carers to a greater extent than has been the case until now. I hope that the noble Baroness, Lady Massey, will be willing to withdraw her amendment.

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Baroness Massey of Darwen: I thank the Minister for her response. The case has been made by all the speakers, and I thank those who have given of their expertise today for that.

I shall make a few comments. I am hearing about a great deal of guidance and information packs coming out but not about what local authorities must do rather than what they should do. I want to hear what they must do. I return to the United Nations Convention on the Rights of the Child, under which the welfare of the child is paramount. Clearly in some of the cases we have heard today, the welfare of the child is not paramount. Local authorities do not need information packs; they need the will to support these vulnerable families and children.

I will look at the Ofsted report if the noble Baroness can point me to it. It sounds like an interesting breakthrough. I was involved in the legislation that the noble Baroness mentioned earlier. We managed to get one or two little chinks, but we did not get far enough. I hope that we might get further with these amendments. It is quite clear that there is a lack of local authority support to family and friends carers. They should have teams or individuals specifically to support such carers, particularly when they are providing stability for children, often in an emergency, as we have heard. The emotional and educational outcomes are better for children in family and friends care.

I am happy that the noble Baroness will meet those of us who are interested and the family and friends care network so that we can look at this issue again and try to put some steel into it. It is not only children who will suffer; family and friends carers will also suffer because they do not have the money or the support for the magnificent job they are doing. I beg to withdraw the amendment.

Amendment 44 withdrawn.

Amendments 45 to 45C not moved.

Clause 10: Family mediation information and assessment meetings

Amendment 46

Moved by Baroness Butler-Sloss

46: Clause 10, page 9, line 23, leave out “mediation”

Baroness Butler-Sloss: My Lords, I shall speak also to Amendments 47 to 52. Despite the number of amendments, this is about one very short point: that in Part 2 of the Bill, which at long last we are getting to, Clause 10 is headed,

“Family mediation information and assessment meetings”.

These meetings are required before a relevant family application is made to the court.

I say at once that I am entirely supportive of the Government’s approach in trying to get parents to agree on their children and to get those who have had failed relationships to agree on how to dispose of any cases they may wish to bring. The problem is the word

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“mediation”. I have heard from various sources, particularly from lawyers, and one has to bear in mind that there is no longer legal aid in private law cases. Therefore, both parties will be litigants in person and one quite simply has to recognise that we are talking about people who have parted, some of them in extreme acrimony, and all with the real trauma of a failed relationship. They would not be in the family court if there were no failed relationship.

Many of them, I think the majority, are very sensible about making the arrangements that have to be made after their relationship is over, but there are some who need some help and they will not get it from lawyers any more. There is also a small minority, perhaps no more than 5 %, who absolutely cannot agree on anything and take their failed relationship, covered in acrimony and hate for each other, into the arena of the family dispute in the family court. They fight over the house, they fight particularly over the children and they use the arena of the children to fight through their failed relationship. Sitting as a judge, as I did in this area for 35 years, I can tell you how many acrimonious failed relationships came through my hands.

For a minority of people who are brought to a meeting, which is a requirement before you go to court, mediation is like a red rag to a bull. They absolutely will not accept it, but they will have to accept an information and assessment meeting, which is thoroughly sensible. The word “mediation” may well mean that a number of people will refuse to go to the meeting. They are not going to meet the other party or agree on anything and, therefore, they will not go.

All that I am asking for in this long list of amendments is to take out the word “mediation”. I say to the Minister that of course one expects and hopes that the information and assessment meeting would lead to mediation, probably in the same meeting, if it is possible to achieve, but you will not want to stop the ability to give information and assess what is going on by imposing the stumbling block of the word “mediation”. I beg to move.

Baroness Jones of Whitchurch: My Lords, we have Amendments 47, 50 and 52 in this group. I have listened carefully to what the noble and learned Baroness has said in introducing her amendments, and have some sympathy with the points she makes, but we are approaching the issue in a slightly different way.

We accept that mediation is not always appropriate or of sufficient quality but we support the central thesis in Clause 10 that parents should attend mediation before making a court application. We believe that there are clear advantages, particularly to children, in avoiding the adversarial nature of court proceedings wherever possible, but accept that there will be exceptions.

Our first amendment simply adds flexibility to the clause to ensure that where the court considers it unreasonable families are not required to attend mediation, information and assessment meetings. While we believe that mediation, and ADR more generally, can be very useful means of resolving disputes, they are not appropriate in every type of situation—for example, in

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cases of domestic violence or child abuse. We are therefore proposing amendments for making clearer the process for deciding on exemptions whereby you do not have to be involved in mediation.

This point was picked up in David Norgrove’s family justice review. At the time, he said:

“There would also need to be a range of exemptions for those for whom an application to court was urgent, or for whom dispute resolution services were clearly inappropriate at the outset. The regime would allow for emergency applications to court and the exemptions should be as in the current Pre-Application Protocol”.

When these issues were debated in the Commons, the Minister stated that the Government had invited the Family Procedure Rule Committee to draw up rules specifying areas where exemptions to the proposed procedure would be appropriate, including domestic violence. The Minister also identified at that time other areas where exemptions might be relevant. These included: a need for urgency; where there is a risk to the life, liberty or physical safety of the applicant or their family; when any delay would cause a risk or significant harm to a child; or where a miscarriage of justice might occur. At the time, we welcomed this commitment. However, we requested that the draft rules be made available to Parliament before scrutiny of the Bill is over. We have now received the letter and its attachments from the noble Lord, Lord McNally, which again states that the Family Procedure Rule Committee will be invited to make rules on these matters. Given that we still have not seen the rules, we ask the Minister again: when will these be made available? How can we be expected to judge whether this provision is sufficient to address our concerns in their absence?

Our second two amendments in this group would insert a definition of an “approved mediator” as someone who satisfies defined training and quality standards assurances and would specify that a mediation, information and assessment meeting would always be held with an approved mediator. These amendments originate from concerns expressed to the Justice Committee in pre-legislative scrutiny that the quality of mediators is often far too low. They tie in with the concerns we have just touched upon: that mediators might have to screen for domestic abuse and safeguarding concerns, which require specialist skills. For example, the Children’s Commissioner for England has highlighted research showing that around 50% of all private law cases involve domestic violence or child abuse. For this reason, it is crucial that mediators are trained and skilled in spotting these issues. It is also important that mediators are trained to listen to and draw out the voices of the children and young people involved.

When this was discussed in the Commons, the Minister said that he had asked the president of the Family Division to revise the existing pre-application protocol to make it explicit that family mediators must be approved by the Family Mediation Council. He said that meant that they would also have to adhere to the code of practice of that council. However, we do not believe that the provision in the code of practice is strong enough. We emphasise again that concerns have been raised about the quality of mediators, even working under this code. We would prefer that safeguards be set out in the Bill.

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Although we agree with the aim of the clause and welcome the provision as far as it goes, I hope that the Minister will understand our ongoing concerns and agree to give further consideration to incorporating the additional safeguards set out in our amendments.

Lord Wigley: My Lords, I shall speak to Amendments 50 and 52, tabled by the noble Baroness, Lady Hughes of Stretford, which would ensure that any mediator who is to deal with family disputes through a family mediation, information and assessment meeting—known somewhat inelegantly as MIAMs—would have to be approved and would need to have undergone relevant training and quality assurance. I also signal my support for Amendments 46 to 49 and Amendment 51, as tabled by the noble and learned Baroness, Lady Butler-Sloss, which would remove the introduction of compulsory mediation.

Currently, of course, attendance at a MIAM is voluntary. Solicitors make a referral to a mediator, allowing clients to receive legal advice prior to the mediation process. Since April 2011, parties have been required to send an FM1 form to the court alongside court applications to show that they have considered or attempted mediation. I should also point out that there is currently no regulation of mediators and that many have no formal training, although of course many are also qualified solicitors.

Under Clause 10, attendance at MIAMs will be made compulsory. There is great concern that this may be used to further domestic abuse in certain cases. Since MIAMs will be compulsory, mediators will be given the task of screening for domestic abuse and children’s safeguarding issues, yet without training there can be no knowing whether the skills these mediators possess will be appropriate or adequate to undertake such work. Legal aid will still be available for mediation but since legal aid has been withdrawn for private family law cases, except those involving recent domestic abuse, parties will be entering into the mediation without having received prior legal advice. That puts children and abused adults in a particularly vulnerable position.

Finally, since the majority of parents settle contact arrangements between themselves, the cases which go through to the courts process are by necessity the most complex and the most likely to involve abuse. Forcing parties through mediation in these circumstances would be highly damaging and potentially dangerous. At the very least, accreditation of mediators should be made compulsory. I urge the Minister to accept these amendments.

6 pm

Baroness Howarth of Breckland: My Lords, my name is attached to a number of these amendments. I would like to raise some issues that I came across in eight years’ involvement in CAFCASS and many years before that as a social worker. I hope that the Government will look at these issues between now and Report. I would like mediation to be replaced by meetings where information is given. At these meetings, people can find out what they should be doing next; they are

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often highly successful in helping the parties talk to each other in a different way. If you use mediation, it has a special nature.

Mediators often say that they will not intervene to give direct information and advice, certainly not as regards helping parties to think directly about the implications of their behaviour. Mediation is often about sitting back and thinking things through. When you are using the court arena simply to fight your battles, as the noble and learned Baroness, Lady Butler-Sloss, so eloquently described, that type of mediation is totally unhelpful. I have been allowed to sit in and watch CAFCASS officers intervene on parties in an extremely direct way. That has had much more impact than the kind of therapeutic situation which is often delivered through the mediation association—I chaired a government working party on this many years ago—in which people, particularly those in conflict, find it very difficult to sit and reflect on their behaviour.

It is certainly important that we have recognised mediators but I hope that mediation will be looked at in a much broader sense than simply reflective mediation. That was one of the issues which came forward in the pre-legislative scrutiny to the 2006 Act. I think it was that Act although it could have been another—I have been here too long. A number of people from mediation groups came to talk about how they could not direct, or be directed themselves, in their work with families. These families often need a much more behavioural approach, rather than a reflective one. We need to think through some of these issues before we come to a conclusion. However, I stand by my name being attached to those amendments which seek to leave out “mediation”.

Lord McColl of Dulwich: My Lords, I support this amendment. We need to take notice of what the noble and learned Baroness, Lady Butler-Sloss, has said, given her enormous experience. Let us leave out “mediation”.

The Minister of State, Ministry of Justice (Lord McNally) (LD): My Lords, when Rupert Murdoch appeared before a committee down the corridor, he said it was the humblest day of his life. It is not for quite the same reasons but I approach this Bill with more than a certain humility, given the expertise in this Committee. I have listened to a goodly part of the debates. It is common cause that we are trying to get this important Bill right in terms of what is in it. That is the value of this Committee in this Room. It is less frantic than in the other place, less susceptible to the passing trade and more for those with genuine expertise. I approach Part 2, which is the section I shall be dealing with, with a desire to listen and to try to explain how and why the Government have come to the position they have reached thus far in the process of the Bill.

The Family Justice Review recommended that parents who need additional support to resolve a dispute should first attend a mediation, information and assessment meeting—a MIAM—to receive information about mediation and be assessed for suitability to mediate. It is very important that there should be an

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early assessment for mediation. That was the intention behind the existing pre-application protocol introduced in April 2011, which we intend to strengthen under this clause.

With reference to the amendments tabled by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord McColl, we feel that the name of the meeting should convey to those who will attend it something about its purpose. An “assessment and information meeting” would not meet that objective in our view. Indeed, prospective applicants and respondents might be reluctant to attend such a meeting without knowing what they will be assessed for. The Family Mediation Council has published requirements for the conduct of MIAMs which describe clearly the elements to be addressed by the mediator. hey include providing,

“information about all appropriate methods of family dispute resolution, including but not limited to mediation … collaborative law, solicitor-led negotiation and litigation”.

We intend to invite the Family Procedure Rule Committee to make rules that include reference to those requirements.

Turning to the amendments tabled by the noble Baronesses, Lady Hughes and Lady Jones, I recognise the concerns about safeguarding access to the courts. The Government do not intend that vulnerable parties should be put at risk or be prevented accessing the court. However, involving the court in every case at the stage before proceedings have started to determine whether it is reasonable for an applicant to attend a MIAM would be unworkable. It would impact on the courts and cause delay, particularly in public law care and supervision cases, and would undermine our efforts to ensure that court involvement is avoided wherever appropriate and safe in private family disputes. We agree that the requirement to attend a MIAM should not apply in circumstances where it is appropriate or necessary for a court to make decisions. That includes where there is evidence of domestic violence, child protection concerns or other reasonable grounds for exemption such as urgency or the significant risk of a miscarriage of justice.

The pre-application protocol in operation since April 2011 already places an expectation on a prospective applicant in relevant family proceedings first to attend a MIAM, but allows for exemptions in the circumstances I just mentioned. A family mediator may also determine, on the basis of their professional judgment, that the nature of the case makes it unsuitable for a MIAM. A mediator might make such a determination on the basis of a telephone discussion with the prospective parties. The current exemptions already reflect our position that adequate safeguards should be in place, and we intend to invite the rule committee broadly to replicate these in making rules under this clause.

A number of noble Lords, including the noble Lord, Lord Wigley, raised the question of the quality and training of mediators. The Government understand the concerns about the need for appropriate training and quality standards for mediators who conduct a MIAM. Family mediators who conduct MIAMs are already required by the Family Mediation Council, or FMC, to meet minimum standards and other detailed requirements, and only certified mediators can conduct

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a MIAM. Time does not permit me to list these requirements but I am happy to place a copy of them in the House Library and send them to noble Lords.

The existing pre-application protocol specifies that “family mediator” means a family mediator who is subject to the FMC’s code of practice and who is authorised to undertake MIAMs in accordance with the requirements set by the FMC. We propose to invite the Family Procedure Rule Committee to make rules of court under subsection (2)(b), which makes specific reference to those requirements. The rule committee is mandated by statute to make rules about practice and procedure in family proceedings, and we believe it is appropriate that the committee makes these rules about statutory MIAMs.

Clause 10 is intended to strengthen the existing protocol. We are building on a system that has now been in operation for two and a half years. The rule committee has a statutory duty to consider consultation on draft rules, including those to be made under this clause. The detail is, I recognise, important. I am happy to say that the rule committee has decided to consult on the draft rules so that there can be wider scrutiny of them, and it plans to consult shortly. My officials will ensure that the views and concerns expressed by noble Lords are conveyed to the rule committee as part of that consultation process. If any noble Lord would like to receive and consider the draft rules, my officials can ask the rule committee to arrange that.

While checking whether I have covered the other points that were raised, I should just say that we are standing by the point that the MIAM should have mediation in it. It is not helpful for it to be absent. I understand the point that the noble and learned Baroness, Lady Butler-Sloss, made. Even from my limited knowledge, I know of the confusion that there is between mediation and marriage guidance counselling. People who have long decided to get out of a marriage do not want to be guided; they want to be helped through what is a traumatic period. However, I hope that we have this right. The accreditation of mediators is safeguarded. We do not believe that the Government are best placed to undertake a regulatory role in this area, but the guidance is there.

It is interesting that the MoJ has commissioned some independent qualitative research to look at barriers to accessing MIAMs and mediation. This will include looking at the experience of clients who did not attend a MIAM and the reasons for that. We expect to receive a number of emerging findings from that research in early November, and I will certainly make the research available to the House as the Bill progresses.

The rule committee is meeting on 4 November and will seek views in particular from family practitioners who work every day with users of the family justice system. The rule committee itself also has considerable expertise and we believe it is the appropriate body to do this work. My officials will ensure that the views and concerns expressed by noble Lords are conveyed to the committee, and we will make sure that its work is made available to those interested. I hope that with

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those explanations and rationalisation of our position, the noble Baroness will feel able to withdraw her amendment.

6.15 pm

Baroness Hamwee: My Lords, before the noble and learned Baroness responds, as I understand it her amendments are not seeking to change the content of such a meeting and in particular did not seek to take out the term “mediation” at line 41 on page 9 in the list of what information is to be provided. I understand what she says about not deterring people simply because of a title. Is it necessary to call these meetings anything other than family meetings, just for the purpose of getting people there to deal with the issues as they arise? It seems an unnecessary obstacle.

Lord McNally: That is the very interesting nature of this debate—whether removing the term will mean that it is not on the tin, so people will not be sure what they are letting themselves in for, or whether, as the noble and learned Baroness, Lady Butler-Sloss, is suggesting, it being on the tin will deter people from opening the tin. As I said, we have commissioned research on this. We are only at Committee stage. I will make the outcome of that research available. There is no absolute certainty at this stage as to which of us is right about this.

The Deputy Chairman of Committees: My Lords, with great respect to the noble Lord, a Division has been called in the Chamber. The Grand Committee stands adjourned until 6.27 pm.

6.17 pm

Sitting suspended for a Division in the House.

6.27 pm

Lord McNally: My Lords, before I was so rudely interrupted, I was about to prompt withdrawal of the amendment by the noble and learned Baroness, Lady Butler-Sloss, who I hoped would be convinced by my eloquence. What I was saying when the bell went is that the term “mediation” in the title helps people to know what the purpose is and encourages them to be brought into it. The debate has been interesting. There are those who are arguing that it will frighten people away. We have commissioned some research and perhaps we should await that research and then return to this debate. When the noble and learned Baroness, Lady Butler-Sloss, has seen the research she will say, “Oh, my goodness, I was wrong. The noble Lord, Lord McNally, was right all along”. Mind you, we are paying for the research. On that basis, I hope that she will agree to withdraw the amendment.

Baroness Howarth of Breckland: I apologise but just before the Division Bell rang the Minister talked about knowing what was on the tin. The problem with the word “mediation” is that it conveys a range of different concepts, even within the professional world, and certainly if you are a warring parent. I am not saying that we should not indicate what is going to happen in the

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meeting and that people may be asked to look at how they can approach their relationships, if not mend them, but “mediation” is a difficult word for everybody, inside and outside the profession, and I think that we should look for another one.

6.30 pm

Lord McNally: My approach to this Committee is that I genuinely do listen and take back its findings not only to my expert advisers but to other experts in this field who are not members of this Committee but will read its proceedings. If people on either side of the argument want to write to me and relate their experiences, we may be able to make a definitive decision on this issue at a later stage. I will certainly not go to the wall over the name that is used; I want an effective process.

Baroness Butler-Sloss: My Lords, I say to the Minister that I am perfectly prepared to be wrong; I often am. However, I think that on this occasion I am probably right and I shall be very interested to see the research. I would very much like a copy of the draft rules. I used to be the chairman of the Family Procedure Rule Committee. I have to confess that I tried not to attend that committee if I could avoid it as it is quite the most boring committee I have ever sat on. However, I should like to see the draft rules and would be most grateful if they could be provided.

The noble Lord knows that it is the practice in the Moses Room to withdraw the amendment and I will, of course, do so, but before I do so I should like to make one or two points. I am extremely indebted to the noble Viscount, Lord Eccles, for making the point that the title should be neutral. That was what I was searching for, although I did not use that word. The neutral title could be “family information meetings” or, as has been sensibly suggested by the noble Baroness, Lady Hamwee, “family meetings”. Family information meetings might be slightly better as people would know that that was what they were going to get.

I am entirely supportive of mediation in the right cases, and in all but 5% of cases it will be right, if they ever go to court at all, which most of them do not. Where neither party is legally aided, they will both battle through the real difficulties of making their applications and so on in the county court or magistrates’ court and try to cope with something which is completely unfamiliar to them. Therefore, the information meeting, and a requirement to have one, seem to me entirely admirable.

The only problem is that there are in a sense two stages to this because mediation is different from information and assessment. It imposes upon people a requirement to try to settle. You cannot have compulsory mediation. You can have compulsory information and assessment, but you cannot require people to settle. That is something I was taught as a young barrister and I have learnt all the way through my legal and judicial career that people cannot be made to settle. The purpose of mediation is to get them to settle or to try to tackle the issue in a better way, but that could be achieved through the provision of information and an assessment. One has to understand that mediation is in a different class from information and assessment.

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I throw out my next point as a possibility for the Family Procedure Rule Committee and the Minister’s experts to look at. I am not suggesting that this is necessarily a good idea but I throw it out for consideration. I would be content if the forms that the parties receive put the words “information”, “assessment” and “mediation” in brackets. Parties could cross out the word “mediation” to show that they are prepared to opt for information and assessment but are not prepared to go through a process of trying to make them settle. That might just do the trick if you want to keep the word “mediation”.

However, I am very concerned about the small number of people who are most likely to go to court. You do not go to court if you can reach agreement. Some 90% do not go to court or go to court only to obtain an agreed order, 5% can be persuaded to go through mediation, and probably mediation is just what they need, but 5% cannot. What could happen if there is a requirement for mediation is that particularly the man, although sometimes the woman, will get to the meeting with the trained mediator and the minute the mediator starts to say, “Well, could you not agree to this?”, he will storm out and not listen to what he needs to understand as to how the court proceedings will go. That is my real worry. However, for the moment, I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

Amendments 47 to 52 not moved.

Clause 10 agreed.

Clause 11: Welfare of the child: parental involvement

Amendment 53

Moved by Baroness Hughes of Stretford

53: Clause 11, page 10, line 15, leave out subsections (2) and (3) and insert—

“(2) After subsection (3)(g) insert—

“(h) the quality of the relationship that the child has with each of his parents, both currently and in the foreseeable future.””

Baroness Hughes of Stretford (Lab): My Lords, Clause 11 would require a court, in considering arrangements to promote a child’s future, to presume, unless there are reasons to the contrary, that continued involvement of each parent would be conducive to the child’s welfare. I move Amendments 53 and 55 as much to probe the complex issues inherent in this matter as to propose a definitive solution. Indeed, it is not clear yet whether the Government’s proposal or any of the amendments before us today are the best route to achieving the policy objective of meaningful, continuing contact between children and both parents when the parents break up. I hope that this debate will clarify those issues so we can move to a sensible position that maximises the chances of achieving that policy objective, with which I wholly concur, while minimising the possibility of unintended, negative consequences for the children. Much of the debate

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outside this place has turned on the nuances of different legal interpretations of the impact of Clause 11 on the current overriding requirement in Section 1 of the Children Act that the,

“child’s welfare shall be the court’s paramount consideration”.

I will come to that point in a minute but I want to say at the outset that I believe there is a problem to be addressed here, and that the Government are right to try to do so.

We do not yet have a society in which mothers and fathers are accorded equal status as parents. Certainly by much of our public policy, public services and professional practice, whether health, education, social care, policing or the family courts, the default position is very often that parent equals mother. Often this disadvantages mothers because they are held more to account for children’s well-being. They are blamed more when things go wrong and the kids go off the rails and fathers are often let off the hook by professionals and organisations. In other instances, however, this default position can work against fathers who can struggle to get recognition from professionals. When parents separate, if the father becomes the non-resident parent, as is often the case, they are often not supported adequately by the courts or professionals to maintain contact with their children. So I start from the position of sharing the Government’s desire to put in public policy the principle of shared parental responsibility and involvement in a child’s life. Indeed, I would argue—I am sure all of us would argue—that for most children the paramount principle of the child’s welfare enshrined in the Children Act cannot be fully met unless both parents are fully involved in a child’s life and have a continuing relationship with the child, so it may be that there is a need to strengthen the principle of parental involvement.

I was a Member of Parliament for 13 years and during that time I had many cases in which fathers—and they were all fathers—had become excluded from their children’s lives, either because of the minimal contact arrangements decreed by the court in the first place or by the failure of the court to enforce the contact arrangements that had originally been made. Noble Lords may be aware of the recent decision in June this year by the Court of Appeal. Their exceptional but very welcome decision to publish their judgment and findings on one such case—Re A—has revealed the extent to which the system is sometimes failing to enable children to maintain relationships with non-resident parents, usually, but not always, the father. In this case, the father fought for more than 10 years, the family courts made 82 orders, but in the end a senior family court judge decided the impasse should be resolved by banning the father from further attempts to see his child. The Court of Appeal ruled that collectively over time, the failure of the courts amounted to,

“an unjustified violation of M’s and the father’s rights to respect for family life under ECHR”.

It would be a mistake to regard this case as wholly exceptional. It is exceptional only in that it is now in the public domain.

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It may reflect in parts, but not all, of the system a culture that does not always regard the non-resident parent as equally important either in initial decisions or in enforcement. When that happens, as the cases I had as an MP showed, it often means that children lose contact not only with their fathers but with their paternal grandparents and their entire paternal family.

However, there is a view that the change in the law proposed by Clause 11, which introduces a presumption of parental involvement, would dilute the paramountcy principle of the welfare of the child in Section 1 of the Children Act. I have seen the Minister’s note which contends that the paramountcy principle is not a rebuttable presumption and therefore cannot be in conflict with the presumption in Clause 11 which is rebuttable if it needs to be on the grounds of the child’s welfare. The Minister’s view is that there is no potential conflict for the courts in juxtaposing the paramountcy principle, which is the overriding one, and the presumption in Clause 11. I am sure we will hear many views on that during the course of this debate, and I look forward to hearing them because this is a complex issue and we need to think about it very carefully.

Another argument raised against Clause 11 is that it is unnecessary, as only around 10% of cases are currently decided in courts and in 2010, for example, only 0.3% of the large number of applications for contact was refused. However, that is to assume that in all other cases contact arrangements are satisfactory, whereas many non-resident parents feel that they are forced—advised, in fact—to accept arrangements for quite low levels of contact between them and their children because that is the cultural norm set by the courts in these contested cases.

We agree that the paramount consideration is the welfare of the child and that this principle should not be jeopardised or diluted. However, we argue that the welfare of most children depends on substantial contact with both parents and the shared involvement of each parent, resident and non-resident, in the child’s life, unless there are reasons to the contrary and subject to the detail of arrangements which give the child as stable and enriched an experience as possible. With the focus on the child, any arbitrary splitting of the child’s time on a 50/50 or other basis would not be acceptable because this is about the child’s rights, not the parents’ rights. Equally, it is not acceptable for a parent to use the child to score points or vent frustration with an ex-partner by opposing or frustrating contact and involvement. Amendment 55 therefore clarifies that parental involvement does not and should not equate to shared parenting or shared time and that the involvement must promote the welfare of the child.

Amendment 53 would not include parental involvement as a legal presumption in Section 1 of the Children Act but instead inserts into the welfare checklist in Section 1(3) an additional criterion, namely,

“the quality of the relationship that the child has with each of his parents, both currently and in the foreseeable future”.

This would require the courts to focus on the current and future involvement of both parents without making it a legal presumption and therefore subject to the debate

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we are having today. It may avoid the doubt that has been expressed about whether the Government’s preferred formulation in Clause 11 dilutes the paramountcy principle. That is the core issue that we need to clarify this afternoon. I beg to move.

6.45 pm

The Deputy Chairman of Committees (Lord Haskel) (Lab): If Amendment 53 is agreed, I cannot call Amendments 54 and 55 because of pre-emption.

Baroness Butler-Sloss: I assume that I am allowed to speak to Amendment 54. I agree with, particularly, Amendment 55. It is extremely sensible because it cuts out the division of a child’s time, which all too many lay people see as “shared parenting”. Thank goodness the Government have taken those two words out of the draft Bill.

Clause 11 raises a technical legal point of considerable importance. It will affect the way in which all family judges and family magistrates try private law cases where the arrangements in relation to children have to be decided by the court. The noble Lord, Lord Ponsonby, would be affected by it sitting in the family proceedings court. I have discussed this clause with some members of the judiciary, who view it with some concern.

I start with a problem. If the clause becomes law, it will raise two potentially conflicting presumptions for the court to tackle. I regret to say, with the greatest respect, that the Minister will be wrong if he says what the noble Baroness said was in his brief. Under Clause 11 the court, in the various circumstances, is to presume, unless the contrary is shown, that the involvement of each parent in the life of the child concerned will further the child’s welfare. That is a presumption. However, the whole basis of family child law is the presumption of the paramountcy of the welfare of the child, which is in Section 1(1) of the Children Act 1989.

“Where a court determines any question with respect to … of the upbringing of a child … the child’s welfare shall be the court’s paramount consideration”.

That is engraved on the hearts of all family judges and magistrates. In order not to be appealed, they always put it at the beginning of all their judgments. It is extremely important.

The effect of Clause 11 is to bring in a second presumption. You cannot help it because you are presuming in Clause 11 and you are presuming in Section 1 of the Children Act. Those two presumptions potentially clash. Quite simply, a court can have only one presumption at a time.

This is not just me making a legalistic technical point. People might be forgiven for thinking that I am going back to my judicial days, but I promise that this is far broader than a legalistic point. The NSPCC and Coram are very concerned, and I am happy to adopt the points that they make. They make three very important points: this clause could lead to a shift in emphasis away from what is best for the child towards the feelings and desires of parents; it could inadvertently increase risk to children by putting pressure on parents to agree to contact arrangements that are unsuitable

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or dangerous in the erroneous belief that a court would order that kind of contact; and the proposed change is unnecessary because no evidence of a bias in the court system has been found.

It is not good enough to have two presumptions that the judge has to juggle which could clash. It is particularly difficult for family magistrates who are not lawyers. It is also important to bear in mind that the litigants in the cases to which this clause applies will be unrepresented in the absence of legal aid. As to the increased risk of harm to which the NSPCC and Coram refer, these unrepresented litigants have gone through the traumatic experience of a failed relationship. As I said earlier, 90% will not go to court, or only for an agreed order, 5% can be persuaded by the family information and assessment meeting and the remaining hardcore 5% will be extremely antagonistic towards each other. Some of them actually hate each other. They can hardly bear to be in the same room and the failed relationship has become corrosive. That is not a happy situation in which to make arrangements for their children. I regret to say that I have said from time to time that when parents are in dispute about their children, they are the last people who should ever make arrangements for their future. They are simply unsuitable.

However, one parent or the other may give way and agree to unsuitable access/contact—two failed words—because of the way in which this clause is framed and in the mistaken belief that that is what a court would order. Although the phrase “shared parenting” has been deleted, the public perception is that they will get 50% of the time. When they are not necessarily going to court, that is what one parent will try to impose on the other. Those who cannot agree are likely to hold out for more contact, and this will lead to increased litigation before the courts. The courts are already beginning to be clogged up as a result of the absence of legal aid in private family law cases, particularly at district judge level, where, I am told, district judge first appointments, which used to last half an hour, now go on for at least 45 minutes. The backlog of cases is bound to grow. Of course, the children will suffer while the parents go on fighting and carrying on their dispute about child arrangements because it will take longer for these cases to be heard.

My experience as a family judge and then as head of the family court is that judges look to parents rather than impose gender discrimination in favour of mothers. I made a very large number of decisions in favour of fathers, although Fathers 4 Justice did not believe me. If it had looked at my track record, it might have seen that that was the case. I cannot tell the Committee what Fathers 4 Justice did for me, but its members did lock the gate on one occasion so that I could not get out and I had to get my husband to get the bolt cutters to open it. They also had Batman and Robin on the roof of the law courts. Noble Lords may remember that they stopped Tower Bridge functioning for a week by climbing up to the top, and they also climbed up on to Buckingham Palace.

I know that fathers do not accept that there is no gender discrimination against them and in favour of mothers. However, as the NSPCC said, there is no

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independent evidence of a bias. The Justice Select Committee accepted that there was no such evidence, as did, I understand, the Children’s Minister in the other place. There is no evidence of bias in the courts in favour of one parent. Therefore, the changes appear to be based on perceived rather than actual bias. I hope that the Minister and those behind him will look at the experience in Australia. At this stage of the evening, I shall not go into that, but it has been unhappy, and it has used similar phraseology. Much of this otherwise admirable Bill is very much based on the Norgrove report, which interestingly does not support a change to the Children Act.

Having said all that, I recognise and support the intention behind the clause that the importance of both parents should be at the forefront of the court’s mind. It is very sad that countless children are losing one parent, generally the father, who leaves home and there is no further relationship between him and his children. That is a very sad situation. Of course, we must encourage the continuing involvement of both parents so that after they separate, both are encouraged to stay in touch. However, to make it a presumption is a step too far, and that is why I have not sought to delete this clause. I have sought to amend it to highlight the importance of both parents, but not to create a second presumption. My amendment leaves out the word “presume” and inserts “pay particular regard” to highlight to the judge that he or she must,

“pay particular regard, unless the contrary is shown, to the importance of the”—

and then the wording of the clause is followed.

This is an important matter that cannot be brushed aside. I am speaking because of the issue of presumption and the effect that it will have on the public who come to court. From my practical experience, I am extremely concerned about the impact on the overriding presumption of welfare not just in the courts—where I think most judges could cope with the provision, although they do not like to have two clashing presumptions—but in the minds of the public who are trying to come to some sort of settlement. That is worrying, and I ask the Government to look at this issue carefully. My amendment would meet the need to emphasise the importance of the relationship between the child and both parents and the continuing involvement of both parents, but would not create the real problem of competing presumptions.

Baroness Tyler of Enfield (LD): My Lords, I rise briefly to speak to Amendments 54 and 55. I have a lot of sympathy with both of them. I should declare an interest as chair of CAFCASS. I, too, fully recognise and support the intention of Clause 11. In the vast majority of cases it is always desirable that both parents continue to be involved in the bringing up of their children after separation, but we all know that there are some cases where that is simply not possible, and that is what this clause is all about.

I thank the Minister for his helpful letter setting out how Clause 11 might be put into operation. I will leave it to those far more learned than I am in legal technicalities to consider whether this creates

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two competing presumptions or whether one presumption is rebuttable and the other is not. Others will be able to set that out very clearly.

My focus is on the practicalities and how this will impact on a child-centred approach. Our experience at CAFCASS is that sometimes these distinctions, these legal technicalities, are harder in practice to observe in the often very feverish atmosphere of a family court case, something that the noble and learned Baroness, Lady Butler-Sloss, set out clearly for us. Our work at CAFCASS shows how hard it can be to help parents in cases in which there are high degrees of hostility and acrimony to focus on the needs of their children rather than on themselves. Anything that distracts from the focus on the child can sometimes be of questionable value.

Of course, our task at CAFCASS, as ever, will be to promote as full an involvement of both parents as possible to reduce the number of caring mothers and fathers who lose contact with their children after separation in a way that does not make things worse for children. The difficulty that we are discussing can be very much compounded by the invisible nature of the emotional harm that many children experience through no fault of their own when parents separate or divorce. A no-fault approach to separation—it was accepted in divorce cases some time ago—needs to be carried through. Courts can help children who often feel that they are at fault and to blame in some way for their parents’ separation. This emotional harm, unless acknowledged and dealt with properly with all necessary support, can cause a concealed social problem and have long-term costs attached to it.

My key concern about the clause is that parental involvement—I very much support the principle of joint involvement—is seen through a child’s eyes. The situation in which a child finds themselves in after separation or divorce can be difficult, affects schooling and friendships and often undermines a child’s healthy development. Decisions about parental involvement need to support a child’s healthy development, schooling and adaptation to the new situation in which they find themselves.

Finally, each child is unique and a formula of any kind about parental involvement has to be subject to the test of relevance to an individual child, and when courts or CAFCASS are asked to intervene, this is the assessment that they have to make. A statement about the importance of parental involvement is absolutely right in general terms but if in practical terms it is to have real meaning and value for the individual child, that child must also receive the support that they need in the very complex adaptation that they are making.

Certainly, recent research has shown us that children want and need different levels of contact with parents and relatives, and particularly with siblings and friends. It is not just about the parents. We need to ensure that we avoid—and I am sure that we will avoid it—this legislation polarising the contact in any way, in terms of one or both parents agreeing on an enforced basis. Children need a range of contacts with siblings and other relatives to be maintained after separation. I think we all recognise that the law can be a fairly blunt tool, both in its current and proposed forms, to deal

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with a child’s bespoke and individual contact needs. My plea this afternoon is that this should very much be seen in a child-centred way.

7 pm

The Earl of Listowel: I support my noble and learned friend’s amendment and that of the noble Baroness, Lady Hughes. Listening to the noble Baroness, I remember hearing recently a male acquaintance speaking passionately about his despair at not having access to his child. It seemed that his wife, a wealthy woman, had really done him down. He is poor and does not have the access to legal help that she has. Listening to men talk about this so often is very sad.

I will speak during the debate on the amendment of my noble friend Lord Northbourne about the issue of children having access to their fathers, which is desperately important. It is also important to remember that the evidence seemed very clear that while there is a perception that courts are finding favour more with women and that women are too effective at frustrating what the courts want, in practice this is not happening. I heard a presentation of the evidence a few months back but am ashamed to say that I cannot remember the presenter of the details. As my noble and learned friend has just said, the Justice Committee agrees with that. It seems that the Minister agrees too, so I would be grateful if he could help me by providing the information. I think this was a careful and thorough look at cases by an academic to check the perception that there was a bias towards women. In fact, the research showed, quite conclusively and clearly, that this was not the case. I would be grateful if the Minister’s expert advisors might help with that information. He can write to me with it. It is a perceived problem but it is not a real problem. What is true, however, is how tragic and difficult these issues so often are.

I very much regret that I cannot support the Government on this occasion. I examined a similar proposal to that in the Bill in great detail on a previous occasion. In doing so, I visited two contact centres and spoke to staff and parents there. I also spoke with professionals from the Anna Freud Centre who supported such families. My concern is that, at best, the Government may be raising expectations in parents which will only add to litigation and harm children as the conflict between their parents is prolonged. This is the point that my noble and learned friend made and it was also a concern that Norgrove had. In Norgrove’s family review, at first he was favourable to the idea of having some stipulation in the law that this should happen. Then he looked at what happened in Australia and became determinedly against going forward in this way. At worst, my fear is that the Government may be putting children more obviously at risk as courts are pressured to grant more contact to both parents.

By the time these cases come to court, there are often mental health or substance misuse issues within the family. What I heard from the contact centres and the professionals last time around was that, too often, a parent—and often this would be the father—was granted access to his child before he had addressed his alcohol misuse issues, for instance. Quite often the

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agreement would be that the father would have supervised access on two or three occasions, but that would be gone through in a quite perfunctory way and the father would have access. I should perhaps not name a gender here; the parent could be male or female.

Following this and before we legislated in this area—it was very helpful at the time—the courts inspectorate produced a damning report on child safeguarding in the private family courts, finding that court reporting officers were not communicating child protection concerns to the relevant authorities. If anything, back then the bias seemed to be too much in the other direction: courts were not taking enough care about granting contact between children and their parents.

Family courts are under great pressure financially. A large increase in litigants in person adds a further burden. It would be wisest to allow judges to make decisions about what they consider to be in the best interests of the child without the distraction that the Government’s proposal offers. I am strongly of the view taken by the National Society for the Prevention of Cruelty to Children, Coram—a wonderful institution which produced the model for the children’s centres that have proved so successful—and my noble and learned friends that the Government should think again about this. I look forward to the Minister’s response.

Baroness Howarth of Breckland: My Lords, I want to intervene briefly to say two things. All this is about perception as against fact and we have to ask ourselves why we are dealing with this clause at all. The noble Baroness, Lady Tyler, will know very well that CAFCASS, when being pressed by fathers who were saying that the presumption was against them, carried out research which showed that there was no presumption either way.

Of course there are miscarriages of justice. We cannot deny that from time to time in all areas of the law there will be miscarriages of justice, for both women and men, but that is not to deny the overriding information and the principle. I am very concerned that if we lose the paramountcy of the welfare of the child, the confusion that will follow will lead to other perception issues.

The other perception issue is very clearly, as one or two noble Lords have intimated, what is in the press—and that is that the father, it is usually the father, will be able to gain shared parenting. What they mean by shared parenting is half and half. We know how damaging that would be to a child, as the noble Baroness, Lady Tyler, said, when seen through the child’s eyes. If you talk to children and young people who are before the court, they want their parents to stay together—you have to work through all that—and then they want their lives disrupted as little as possible. They want to remain in the same school; they want to be able to see their friends at the weekend; they do not want to take a suitcase somewhere else every two weeks—although, I have to say, some children quite enjoy it. I have talked to kids who really enjoy having two places and adjust to it. However, many do not, and therefore it is important that the child’s wishes and feelings are taken firmly into consideration. I

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think the perception will be that fathers, in particular, can get a different agreement from the court, rather than the paramountcy of the welfare of the child being the main issue.