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Grand Committee

Monday, 18 November 2013.

3.30 pm

Children and Families Bill

Committee (11th Day)

Relevant documents: 7th, 9th and 11th Reports from the Delegated Powers Committee and 3rd Report from the Joint Committee on Human Rights.

The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con): My Lords, welcome to the 11th day of Committee on the Children and Families Bill. The noble Baroness, Lady Northover, wishes to say a word.

Baroness Northover (LD): My Lords, with the Chairman’s leave, I would like to remind everyone taking part in Committee proceedings today and on Wednesday that these are our last two days in Committee. The usual channels and all those involved are committed to that objective. To that end, we have agreed to sit to target this evening and on Wednesday, if necessary sitting later than our usual rising time by half an hour or so. Today’s target is to complete Amendment 266AZZZA.

Baroness Hughes of Stretford (Lab): Could I just clarify that? I think what has been agreed by the usual channels is that we will sit until 8 pm—that is, an extra half an hour, not thereabouts and not to target.

Baroness Northover: I hear what the noble Baroness says and I am sure that the usual channels will also have heard what she says. I will send an e-mail and clarify if need be.

Clause 76: Repeal of local authority’s duty to assess sufficiency of childcare provision

Debate on whether Clause 76 should stand part of the Bill.

Baroness Tyler of Enfield (LD): My Lords, I rise to propose that Clause 76 should not stand part of the Bill. I have considerable concerns about the clause as it stands and wish to probe the Government’s thinking. In technical terms, Clause 76 removes Section 11 of the Childcare Act 2006, which places a statutory duty on local authorities in England to assess the sufficiency of childcare. Section 11 supports the Section 6 Childcare Act duty on local authorities to provide sufficient childcare for working parents as far as is reasonably practical.

I am aware that the Government’s view of this is that the childcare sufficiency assessment is simply a bureaucratic burden which can be removed with no drawbacks and, indeed, that this would allow local authorities to spend more time on securing sufficient childcare provision. I do not think it is that straightforward. The assessment was not introduced simply as a bureaucratic process designed to divert time and resources; it had a

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clear purpose. In practice, Section 11 sufficiency assessments are the mechanism through which local authorities meet, and are held accountable for, the Section 6 sufficiency duty. My key concern is that repealing Section 11 and the associated regulations without an effective replacement will effectively revoke the Childcare Act sufficiency duty altogether in many areas.

Would not a better solution to concerns about excessive prescription in the Section 11 regulations be to maintain the Section 11 duty itself but to simplify or revise the regulations? Evidence suggests that statutory guidance is not likely to be an effective alternative to a duty in primary legislation if it leads to a duty having a lower financial priority or not happening at all. On top of this, the Government have reduced statutory guidance on the sufficiency duty from 70 pages to a single page—you could say that is going from the sublime to the ridiculous—which removes important guidance on what is meant by sufficient childcare. There are concerns that this will lead to lower-quality assessments.

We all know that there are substantial gaps in access to high-quality affordable childcare. For example, just one-fifth of local authorities believe that there is sufficient childcare in their area for the under-twos. In particular, there is a chronic shortage of high-quality places in disadvantaged areas, for parents working atypical hours, often on low incomes, and for children with additional needs. We all know how this undermines what I think we all want to do in terms of promoting social mobility and reducing education inequalities. Therefore, it remains my contention that an effective Childcare Act sufficiency duty remains an important tool in social policy. Of course, I accept that some assessments do not assess sufficiency robustly or reliably, not least because every local authority ends up having to reinvent the wheel. Tellingly, the consultation on removing the Section 11 duty did not show support for removing Section 11 itself as distinct from the outdated regulations. This is where the nub of the problem, and my concerns, lie. Crucially, in their responses, 60 local authorities explicitly requested more detailed guidance on sufficiency assessments than the Government had provided. Surely some publication of good-practice guidance to support local authorities in developing their assessments and their action plans would be helpful.

If this clause remains in the Bill, local authorities will be obliged to provide only an annual report on levels of local childcare to elected members. I am not convinced that this more light-touch approach will provide the same level of incentive for local authority investment in ongoing support, and indeed challenge, from early-years teams, which currently work to ensure that childcare provision is not only sufficient but of high quality. I think we all consider that to be very important, and it is also vital to meeting the needs of young children with special educational needs and disabilities.

In March 2013 the National Children’s Bureau—of which I am president and therefore declare an interest—surveyed local authorities’ early-years teams and parents to gauge views on the removal of the duty to carry out childcare sufficiency assessments. Only 20% of respondents

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were confident that their local authority would be able to secure sufficient childcare if the local authority duty to carry out the sufficiency assessment were removed. Given such low levels of confidence, on what does the Minister base her confidence that removing the duty to assess sufficiency is the right way forward?

In conclusion, looking at the big picture, local authorities in England receive £3 billion to £4 billion of early-years funding annually. Public investment on this scale should be matched by a legislative framework to guide effective investment and ensure accountability. Like other noble Lords present, I was actively involved in the Care Bill currently before Parliament. The Care Bill was introduced with a new sufficiency duty for adult social care, modelled on the Childcare Act, including a duty in primary legislation to understand the supply and demand of services. It is difficult—even a little odd—to explain the removal the same duty in early-years provision at exactly the same time. I beg to move.

Baroness Hughes of Stretford: My Lords, on behalf of my noble friend Lady Jones and myself I oppose the proposition that Clause 76 should stand part of the Bill. I will also speak to Amendment 240S in our names, which is an amendment to government Amendment 240R.

As the noble Baroness, Lady Tyler, said, Clause 76 would repeal the duty of local authorities, under Section 11 of the Childcare Act, to undertake and publish regular assessments of the sufficiency of childcare in their area. In so doing—I entirely agree with the noble Baroness —it would effectively neutralise the general duty, under Section 6, to ensure sufficient childcare for working parents.

The Government carried out a very inadequate consultation on this proposal, and produced findings which can be described, at best, as one-sided. Contrary to the Government’s claim, the consultation did not show support for removing the Section 11 duty, but rather for the need for revised guidance and a real effort by the Government to help all local authorities implement that duty as well as the best authorities are already doing. I agree that some action is necessary: where practice is variable; where there are shortages of childcare, as in many areas; and in relation to specific needs, for example parents who work unsocial hours or have disabled children,

This nurturing of the role of local authorities in driving up supply and continuous improvement in childcare is important. While some local authorities are doing it very well, they use different definitions and different methodologies, and many have poor action plans. As the noble Baroness said, this could and should be addressed, not by repealing the duty to assess sufficiency, but by providing guidance, developing a consistent measure of childcare demand, and a framework model for the action plans that need to come through—something the five-year review of the Childcare Act in 2009 showed was necessary. The Government may say they have revised the guidance, but they have not changed it in a way that addresses any of those issues. They have reduced 70 pages of

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guidance—and there is an argument that that is far too long, and practice shows it is the case—to less than two pages of sketchy, top-level, vague requirements, sending a clear message to local authorities that this duty does not matter to the Government any more.

I think it is worth reminding ourselves of why the Childcare Act 2006 substantially strengthened the duties of local authorities to ensure sufficiency of childcare: first, to stimulate the local market to increase the supply of good-quality childcare; secondly, to enable working parents and those aspiring to work to access childcare; and, thirdly, through that to support economic growth in those areas—something that is very much to the fore now. Indeed, there is a very strong business case for seeing childcare not only as important for child development and parental choice but as an increasingly essential part of the infrastructure to support people getting into work, which was never more important than now, when many families are suffering the brunt of the recession.

The Family and Childcare Trust has undertaken detailed analysis of local authority performance under the sufficiency duty. It shows that some have done well, suggesting that the problem is not fundamentally one of legislation but of good practice and the level of capability of individual authorities. Repealing that duty under Clause 76 will drive a coach and horses through the sufficiency duty itself, as the position in Scotland has demonstrated. There, there is no duty—just statutory guidance, similar to what the Government now propose for England. A third of Scottish authorities do not collect adequate data, and Scotland has only half the proportion of private and voluntary providers because local authorities do not do the work to stimulate the market and promote new childcare providers in the way that the best English local authorities have done. A much better alternative would be to replace the three-year assessment with an annual assessment, to simplify the guidance and to include frameworks for consistent supply and demand measures, to require local authorities to produce an action plan and to monitor local authority performance against those plans.

Finally on Clause 76, perhaps the Minister will explain why the Government are effectively neutralising the sufficiency duty in childcare while at the same time bringing in a new sufficiency duty in the Care Bill in respect of local authorities’ duties to ensure that there is sufficient adult care in their area. That seems a contradiction; I wonder why it exists.

Government Amendment 240R is extremely important in its potential ramifications. It introduces, at a very late stage in the passage of the Bill, significant changes to the way local authorities have to secure publicly funded, free early-years provision for three and four year-olds, and potentially has serious implications for the quality of the provision purchased, especially for the most disadvantaged children, including those two year-olds who now qualify. The Government consulted on these proposals, and the overwhelming view of local authorities was that they would have a negative impact on childcare. The proposed regulations will mean that a local authority can no longer apply its own quality assessment when deciding which providers it will commission the free places from. Local authorities

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will instead have to accept the most recent Ofsted judgment. Furthermore, the local authority will no longer be able to attach any conditions about quality or anything else to any provider that is rated good or outstanding.

On the face of it, I understand that in the interests of reducing duplication, requiring the local authority to accept the Ofsted judgment and not to do its own makes some sense, but I have some very specific concerns. First, the latest Ofsted inspection may be very out of date. It can be up to four years old. There may have been significant changes of leadership which have affected what is happening in a particular nursery. In short, the latest Ofsted judgment may not be a reliable indicator of current quality. If it was given a rating of good or outstanding, even four years ago, the local authority will not be able to look at the quality of that provider.

3.45 pm

Secondly, Members will know that there are four Ofsted judgments: “outstanding”,“good”, “needing improvement” and “inadequate”. The local authority will not, under these new regulations, be able to refuse to contract with a provider that is rated “needing improvement”, no matter how serious the concerns that Ofsted expressed. The minute that the Government have issued makes it clear that if parents want a place with a provider in that category of “needing improvement”, and the provider can offer a place, then:

“The provider can demand to be funded to deliver places for 3 and 4 year olds. The provider can also be funded for 2 year olds if there are not enough “good” and “outstanding” places locally”.

We should remember that these are very disadvantaged two year-olds; they are the only ones who can qualify.

Finally, the statement of policy intention envisages that the local authorities would “not normally” contract with a provider rated “inadequate”. However, neither the government amendment nor the indicative regulations prohibit contracting with an “inadequate” provider. This means that if a parent wants a place with a provider that is rated inadequate and the provider can supply it, the local authority could secure that place, which would mean children being placed in “inadequate” settings or in settings needing very considerable improvement because those providers will be able to demand funding. We see the prospect of public money paying for inadequate or poor care.

Therefore, our Amendment 240S would require that a provider has a rating of “good” or “outstanding” in order to contract with a local authority to provide free places. There is room for a debate on where that threshold ought to be, but there can be no acceptable reasons to force local authorities to contract with poor or inadequate providers. We know that there is a chronic shortage of high-quality provision in disadvantaged areas, and therefore that disadvantaged children will suffer most from these changes. Taken together, Clause 76 and government Amendment 240R will seriously undermine the availability and quality of childcare, and local government’s role in its continuous improvement. Taking Clause 76 out of the Bill and approving our Amendment 240S, along with new guidance, would enable local authorities to continue to stimulate the market and protect and drive up quality.

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Baroness Perry of Southwark (Con): Perhaps I may respond to the noble Baroness, Lady Hughes. Ofsted’s category of “needing improvement” does not close a nursery down; other children will continue to be there. Also, if a parent has strong reasons for choosing a local nursery, where perhaps children of friends and neighbours are already attending, a parent should not be banned from making that choice, despite knowing what the Ofsted judgment is. As the noble Baroness rightly said, that judgment could be out of date and the improvement could have happened in the mean time. It would be wrong to condemn a child to being unable to go to the nursery of parental choice just because three or so years ago Ofsted declared that it needed improvement. It is more important that parents have a choice, knowing what they are choosing. The Ofsted report is there for everyone to see and make inquiries about, and there may be powerful reasons for a parent to want a child to go to that nursery. As I say, other children are still going there, it is not being closed down and it is not being put into special measures.

Baroness Walmsley (LD): My Lords, I, too, have considerable concerns about Clause 76, and my noble friend Lady Tyler explained our concerns very well. I do not deny that there are problems with the Section 11 duty, and many local authorities want the Government to do something about it. In fact, the reports have become a bit of a monster and some local authorities do not regard them as terribly useful. However, to repeal the whole duty is taking a sledgehammer to crack a nut. My noble friend has suggested a sensible alternative and I support her view.

I, too, look forward to hearing what the Minister has to say. If the Government were to change their mind about this, and simply change the guidance, I agree with the noble Baroness, Lady Hughes, that it would make a lot of sense to have some kind of standard template so that different local authorities could be compared with each other. Both policymakers and those who disseminate best practice would find it very useful to be able to compare apples with apples and not apples with pears. I also look forward to hearing what the Minister has to say about the word “normally” in relation to inadequate nurseries. That, too, gives me some concern.

Baroness Howarth of Breckland (CB): My Lords, although I had not intended to speak on this section, I would like to raise one particular concern. Before I do that, I will add my concerns to those of the noble Baronesses raising the issue of repeal under Clause 76. Earlier, before we began the Committee, the noble Lord, Lord McColl, talked to me about whether a particular group of children should be given priority and whether we could find a way of doing that. I said that, if you try that, you will find that almost every group of children that local authorities currently deal with are a priority, because those are the only groups that they deal with at the moment. It is very difficult for local authorities at the moment to move into preventive work or into other areas.

If we have one piece of legislation for adults, which has the duty, and another piece of legislation for children, which does not have it, my great concern is

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that children will slip down the priority list in this particular area. I am not saying that they will not be protected—that will be followed up—but proper assessment for under-five provision will slip down the priority level. It has to, because that is the only way that local authorities can manage their finances and priority ratings. I hope that the Minister and the Government will look again at this repeal. I think that the way forward is to look at the regulation and the framework and to get that into an accurate package, which would take us forward.

The other area that concerns me—this is a probing question—is those children who have additional needs and who need to be placed in under-five daycare so that their parents can work or develop skills. I am thinking in particular of children with, say, autism or similar developmental issues and am really trying to probe how this fits with the government amendment. At the moment, a local authority may provide funding for a place, but if the parent wishes to make additional payments for an extra quality of service, the local authority will not pay because that would be a mixture of private and statutory funding—even if the organisation providing that service is a voluntary, not-for-profit organisation.

I take some responsibility because I suspect that, in the past, I was one of the people who pressed for the principle of not mixing private and statutory funding, but I do not think I ever saw it coming to a position where, as a parent, you could not give added quality to children in need. The difficulty has arisen because some parents have objected to having to pay—one organisation I know in particular may have to close its doors because it cannot manage the quality of care that they need to provide for these difficult children. This is really a probing question: are the Government prepared to look at mixing or is it an absolutely sacred principle that private and public funding should not be put together? I also support the other the noble Baronesses who put the other arguments so clearly.

Baroness Northover: My Lords, this is an important debate about the role of English local authorities in securing early-years provision free of charge for young children and about sufficient childcare. In responding, I will also speak to government Amendment 240R.

The Government are as determined as other noble Lords that parents should have a wide choice of early education and childcare places, and that places are of the highest quality possible. Clause 76 will remove the requirement on local authorities to assess the sufficiency of childcare provision every three years. We recognise the concerns raised by my noble friend Lady Tyler and the noble Baroness, Lady Hughes, and I hope that I can provide some reassurance.

There are two duties on local authorities relating to the sufficiency of childcare: the duty to secure sufficient childcare under Section 6 of the Childcare Act 2006; and the duty to make an assessment of sufficiency of childcare every three years under Section 11 of the same Act, which is what we have just been addressing. The first of these duties is paramount. The duty of the local authority to secure sufficiency of childcare remains in place; it is the other element that we are talking

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about here. We are clear that local authorities should take steps to ensure that parents can access the childcare they need.

To satisfy themselves that there is sufficient childcare in their area—my noble friend Lady Tyler is right—local authorities do indeed need to collect information on the availability of, and demand for, childcare. Our statutory guidance makes it clear that local authorities should report to elected members annually on the steps they are taking to address any gaps in childcare provision. The annual report should also be made available to parents, allowing them to hold local authorities to account for ensuring that there is high-quality, affordable childcare in their area. The noble Baroness, Lady Hughes, mentioned a simpler annual report. We are more in agreement here than perhaps it may have appeared from our initial discussions. There will need to be an assessment because those kinds of data are required, and there will need to be an annual report.

The decision to repeal the sufficiency assessment—that three-yearly, very lengthy document—was taken after public consultation. The majority of respondents supported the repeal and the proposals that local authorities should prepare and publish an annual report on the sufficiency of childcare. The noble Baroness, Lady Hughes, referred to that consultation and suggested that perhaps we did not ask whether the duty should be repealed. Perhaps I misunderstood her—it looks as if I did not—but the department did indeed ask this. The question was: “Do you support the repeal of Section 11 and the revocation of the supporting regulations?”. That was directly asked of people, and 62% supported it; only 10% said they did not.

The consultation took place between November 2010 and February 2012, and the Government published their response in May 2011; it is available on the Department for Education website. The feeling came through that what was needed was to ensure that there were sufficient places and that too much focus was perhaps going on this rather lengthy document, produced every three years, which required a lot of effort to put together and was not easy for parents to access, and so on.

No doubt in the first place the provision was made for the best possible reasons and I fully understand why it should be there, but the purpose is to try to secure sufficient childcare and to have a mechanism of putting pressure on local authorities to ensure that that happens. That is why the department is in favour of moving to an annual assessment and giving that annual report to the councillors who are accountable. I hope that noble Lords will be reassured.

The Countess of Mar (CB): Perhaps I might ask the noble Baroness to check the dates she gave us for the consultation. It sounds as though the Government’s response came a year before the consultation was complete, if I heard her right.

4 pm

Baroness Northover: The noble Countess is right. As I read that out, I was thinking, “My goodness, that is a long consultation—a very, very thorough

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consultation”. No doubt I may find that it was not quite like that and, if so, I will inform the noble Countess in a moment. I hope that the substance of what I am saying provides some reassurance.

Baroness Howarth of Breckland: It may be my lack of understanding, but I think that the concern is not that the assessment is being changed from the lengthy three-year bureaucratic document, with which I am familiar, but that the statutory responsibility has been changed to regulation. Is that correct?

Baroness Northover: Perhaps I may answer the noble Countess, Lady Mar. The consultation went from November 2010 to February 2011—which, I agree, is a much more normal length of time for a consultation.

The Countess of Mar: It shows we are listening.

Baroness Northover: I am very flattered. I will come back to the noble Countess in a moment very precisely on her point, because obviously it is very important.

Baroness Hughes of Stretford: Perhaps the noble Baroness will give way on a point of detail about the consultation. I understood that the Government did not test views on repealing the Section 11 duty. I understand that there were two questions: first, whether to move to an annual sufficiency assessment and, secondly, whether to remove the current Section 11 duty and the associated regulations altogether in one question. An analysis of the qualitative responses that people made showed that many people were very concerned about the current regulations, but they did not express a view about Section 11 as a duty in itself; they were more concerned about the onerous regulations.

Baroness Northover: I hear what the noble Baroness says. I have seen some of the responses and she rightly puts her finger on the concern about the document that was produced. Perhaps at the very least we can agree that the three-year assessment that was put in place—no doubt for extremely sound reasons—was not doing what was intended. What we seek to do here is to make sure that we have something that delivers what is required, which is the pressure on local authorities to make sure that they know what the provision is and that it is sufficient. Therefore, moving from three years to an annual assessment is important, as the noble Baroness agrees. We need something which is not so lengthy and dense that by the time it is produced three years later, many of those children will already be in school. The assessment needs to be a little more up to date than once every three years.

Baroness Hughes of Stretford: I am grateful to the Minister for her clarification. I think there is agreement on that particular proposal. Perhaps she could address the point that the noble Baroness, Lady Tyler, I and others made: namely, why do the Government want to repeal the Section 11 duty, which we think would send a very negative message to local authorities, rather than simply amend the regulations in the way in which she is describing?

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Baroness Northover: I am happy to go through some other comments, which may help address those matters. If I do not adequately address them, I will be very happy to write a letter on all the points.

I have now got my papers in the right order. My noble friend Lady Tyler asked about good practice. The department would be happy to publicise any examples of good practice and local authority annual reports. Through the Children’s Partnership, the department runs a foundation years website which provides a range of guidance and good practice material to support early-years professionals. I also point out to my noble friend Lady Walmsley that the department collects and publishes a suite of data on local authority performance in the early years benchmarking tool. So information is held centrally as well, which helps inform both the Government and local authorities. Local authorities will still need to assess local sufficiency, and these proposals will make it less bureaucratic to do so. I hope that noble Lords will be willing to withdraw their opposition and will be reassured that local authorities will still need to assess the sufficiency of childcare provision and to account for it to elected members.

Government Amendment 240R allows new regulations to be made that affect the way local authorities meet their duty to secure early-years provision for young children. The amendment will allow the Government to impose a requirement on local authorities to meet this duty by funding early-years provision at any provider that meets the quality standards set out in regulations.

The department previously set out an expectation that local authorities should undertake their own assessment of a provider’s quality before funding it to deliver places. It seems to us that it does not make sense for the Government to require local authorities to make quality judgments about providers when Ofsted is undertaking a similar role. The noble Baroness, Lady Hughes, acknowledged that we have duplication here, but she was concerned that Ofsted’s assessments might take a while to take place, would therefore be out of date, and so on. Where local authorities have got concerns about a decline in quality since an inspection, they can make representations to Ofsted, which may inspect earlier than scheduled. Given that Ofsted is in place, however, it seems to us that the duplication did not make sense.

The intention is that in future, where a provider has received a “good” or “outstanding” inspection judgment from Ofsted, it should automatically receive funding from the local authority if a parent wants to send their child there. Currently, local authorities can also require providers to meet a variety of additional local conditions in order to receive funding. Some providers report that local authority improvement recommendations have conflicted with the views of Ofsted and that inconsistent requirements have presented challenges for providers operating in more than one area and looking to expand. This clause also allows regulations to be made that limit the nature of the conditions that can be imposed whenever a local authority funds an early-education place.

The noble Baroness, Lady Howarth, asked about top-up fees for children with SEN. As she pointed out, local authorities have a statutory duty to secure early

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education free of charge for young children, but she raised an important point. I will write to her on whether fees could be mixed in the way she talked about.

We intend to make regulations that ensure that local authorities will be able to place conditions on providers to ensure that they meet their responsibilities to meet the needs of disabled children, or children with SEN, to keep children safe and use government funding properly. Under the regulations, local authorities will also be able to set conditions that ensure funded places are completely free, so that no parent is denied access to their child’s funded place by having to pay a fee, and places will be delivered flexibly to meet parents’ needs. Of course, the noble Baroness will have noted that they have a particular responsibility to look after children with special needs. One would hope that the provision made would be appropriate and that the parents would not need to be topping up with extra fees. Nevertheless, I will write to the noble Baroness on that.

Local authorities will continue to have an important role to play in helping providers improve the quality of their provision. They will still be able to place conditions on providers judged less than “good”, requiring them to take the necessary steps to address issues raised by Ofsted at inspection. I hope that aspect will also reassure noble Lords.

Taken together, these changes will create a level playing field for all providers across the country. Nationally consistent criteria will make it easier for good providers to expand outside their local authority area and for new providers to enter the market. In particular, it will enable more childminders to deliver places, giving parents greater choice over their childcare options so that they can do what is best for their family. I urge noble Lords to support the government amendment.

I turn to Amendment 240S in the name of the noble Baroness, Lady Hughes. We absolutely share her aim that we should fund early-education places at the highest-quality providers—there is no doubt about that. The research evidence is clear that high-quality provision has the biggest impact on children’s development. Therefore, we are working very hard to drive up the quality of provision, following on from what the noble Baroness did in her role. She will also be aware of the challenges that government encounters in trying to do that, but we are taking that forward very vigorously. We are reforming the regulatory regime, including planning more rigorous and frequent inspections and a greater role for Her Majesty’s inspectors in quality-assuring those inspections.

To improve the skills and knowledge of those caring for and educating young children, we are introducing early-years teachers at graduate level and early-years educators at A-level standard. However, we do not think that enshrining in the Bill a quality threshold for funded places is the best way to achieve this. Placing a quality threshold in primary legislation would reduce the Government’s flexibility to raise the quality bar as the quality of available provision improves. It would also prevent the Government from easily adjusting the standard to reflect changes to the inspection framework;

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for example, if Ofsted decided to no longer have an inspection category labelled “good”. That kind of judgment is not usually put in primary legislation, as noble Lords will be aware.

I may not have addressed all the issues. I will just see if there are any other things I need to pick up. In answer to the question asked by the noble Baroness, Lady Hughes, about keeping the regulations, the Government’s view is that the statutory guidance is a more proportionate way of supporting local authorities in their sufficiency duty than the regulations, which could be bureaucratic. The guidance is in force and is available on the department’s website. I am happy to write to noble Lords to provide greater detail on that.

The noble Baroness, Lady Hughes, and my noble friend Lady Walmsley asked about funding inadequate providers. Local authorities retain the discretion in extraordinary circumstances to fund inadequate providers. For example, this would allow an authority to fund a provider judged inadequate because of a technicality, such as out-of-date policies that will be speedily rectified. Our guidance is clear, however, that authorities should withdraw funding from inadequate providers as soon as is reasonably practical if they fail for reasons of greater substance than the kind of instance to which I have just referred. I hope that that reassures the noble Baronesses.

I hope that noble Lords will be happy to support the government amendment in this group and will not press their own amendments, and will agree that this clause should stand part of the Bill.

Baroness Tyler of Enfield: My Lords, I am very grateful to my noble friend the Minister for her very helpful responses and the very constructive tone in which she gave them. I am also very grateful to other noble Lords who participated in this debate.

I think that there is a large measure of agreement on this issue. We all agree that no one wants unnecessary bureaucratic burdens on local authorities. We all agree that the Section 6 duty to secure the provision is of paramount importance. I think we can all see that having a report once a year rather than every three years is helpful. No one wants lengthy reports. Some of us have seen reports almost like telephone directories that do not seem to help very much. Those are the things on which we are all agreed.

4.15 pm

There is one issue where there is still some difference of opinion. It is about the powerful signal that Section 11 sends to local authorities about the importance of securing this provision, based on a thorough understanding of supply and demand in their area. I recognise that there are different ways of achieving this. I would still prefer that we retain Section 11, as several noble Lords have said, but substantially simplify the regulations and give some helpful guidance with templates and things like that for local authorities so that they do not have to reinvent the wheel. If it is possible to have any further discussions on this point with the Minister before Report, I will be very grateful.

Clause 76 agreed.

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Amendment 240R

Moved by Baroness Northover

240R: After Clause 76, insert the following new Clause—

“Discharge of authority’s duty to secure free early years provision

(1) Part 1 of the Childcare Act 2006 (general functions of local authorities in England in relation to childcare) is amended as follows.

(2) After section 7 (duty to secure early years provision free of charge in accordance with regulations) insert—

“7A Discharge of duty under section 7

(1) Regulations may require an English local authority to discharge its duty to a young child under section 7 by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision to which the child is entitled in cases where—

(a) the early years provider is willing to provide it, and

(b) the early years provider is also willing to accept—

(i) any terms as to the payments which would be made to him or her in respect of the provision, and

(ii) any requirements which would be imposed in respect of it.

(2) Arrangements made by an authority to satisfy any requirement imposed under subsection (1) may be made with an early years provider or with an early years childminder agency or any other person who is able to arrange for an early years provider to provide early years provision.

(3) The regulations may provide that such a requirement—

(a) applies only if the early years provider is of a prescribed description;

(b) applies only if the early years provision provided by the early years provider is of a prescribed description;

(c) does not apply in prescribed circumstances.

(4) The regulations may provide that arrangements made by an authority for the purpose of complying with such a requirement must include provision allowing the local authority to terminate the arrangements in prescribed circumstances.

(5) In this section—

“early years childminder agency” and “early years provider” have the same meanings as in Part 3;

“parent” has the same meaning as in section 2.”

(3) After section 9 (arrangements between local authority and childcare providers) insert—

“9A Arrangements made by local authorities for the purposes of section 7

Regulations may provide that arrangements made by an English local authority for the purpose of discharging its duty under section 7—

(a) may impose requirements on the person with whom the arrangements are made only if the requirements are of a prescribed description;

(b) may not impose requirements of a prescribed description on the person with whom the arrangements are made.””

Baroness Northover: I beg to move.

Amendment 240S (to Amendment 240R) not moved.

Amendment 240R agreed.

Clauses 77 and 78 agreed.

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Amendment 241

Moved by Baroness Northover

241: After Clause 78, insert the following new Clause—

“Young carers

(1) In Part 3 of the Children Act 1989, after section 17 insert—

“17ZA Young carers’ needs assessments: England

(1) A local authority in England must assess whether a young carer within their area has needs for support and, if so, what those needs are, if—

(a) it appears to the authority that the young carer may have needs for support, or

(b) the authority receive a request from the young carer or a parent of the young carer to assess the young carer’s needs for support.

(2) An assessment under subsection (1) is referred to in this Part as a “young carer’s needs assessment”.

(3) In this Part “young carer” means a person under 18 who provides or intends to provide care for another person (but this is qualified by section 17ZB(3)).

(4) Subsection (1) does not apply in relation to a young carer if the local authority have previously carried out a care-related assessment of the young carer in relation to the same person cared for.

(5) But subsection (1) does apply (and so a young carer’s needs assessment must be carried out) if it appears to the authority that the needs or circumstances of the young carer or the person cared for have changed since the last care-related assessment.

(6) “Care-related assessment” means—

(a) a young carer’s needs assessment;

(b) an assessment under any of the following—

(i) section 1 of the Carers (Recognition and Services) Act 1995;

(ii) section 1 of the Carers and Disabled Children Act 2000;

(iii) section 4(3) of the Community Care (Delayed Discharges) Act 2003.

(7) A young carer’s needs assessment must include an assessment of whether it is appropriate for the young carer to provide, or continue to provide, care for the person in question, in the light of the young carer’s needs for support, other needs and wishes.

(8) A local authority, in carrying out a young carer’s needs assessment, must have regard to—

(a) the extent to which the young carer is participating in or wishes to participate in education, training or recreation, and

(b) the extent to which the young carer works or wishes to work.

(9) A local authority, in carrying out a young carer’s needs assessment, must involve—

(a) the young carer,

(b) the young carer’s parents, and

(c) any person whom the young carer or a parent of the young carer requests the authority to involve.

(10) A local authority that have carried out a young carer’s needs assessment must give a written record of the assessment to—

(a) the young carer,

(b) the young carer’s parents, and

(c) any person to whom the young carer or a parent of the young carer requests the authority to give a copy.

(11) Where the person cared for is under 18, the written record must state whether the local authority consider him or her to be a child in need.

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(12) A local authority in England must take reasonable steps to identify the extent to which there are young carers within their area who have needs for support.

17ZB Young carers’ needs assessments: supplementary

(1) This section applies for the purposes of section 17ZA.

(2) “Parent”, in relation to a young carer, includes—

(a) a parent of the young carer who does not have parental responsibility for the young carer, and

(b) a person who is not a parent of the young carer but who has parental responsibility for the young carer.

(3) A person is not a young carer if the person provides or intends to provide care—

(a) under or by virtue of a contract, or

(b) as voluntary work.

(4) But in a case where the local authority consider that the relationship between the person cared for and the person under 18 providing or intending to provide care is such that it would be appropriate for the person under 18 to be regarded as a young carer, that person is to be regarded as such (and subsection (3) is therefore to be ignored in that case).

(5) The references in section 17ZA and this section to providing care include a reference to providing practical or emotional support.

(6) Where a local authority—

(a) are required to carry out a young carer’s needs assessment, and

(b) are required or have decided to carry out some other assessment of the young carer or of the person cared for;

the local authority may, subject to subsection (7), combine the assessments.

(7) A young carer’s needs assessment may be combined with an assessment of the person cared for only if the young carer and the person cared for agree.

(8) The Secretary of State may by regulations make further provision about carrying out a young carer’s needs assessment; the regulations may, in particular—

(a) specify matters to which a local authority is to have regard in carrying out a young carer’s needs assessment;

(b) specify matters which a local authority is to determine in carrying out a young carer’s needs assessment;

(c) make provision about the manner in which a young carer’s needs assessment is to be carried out;

(d) make provision about the form a young carer’s needs assessment is to take.

(9) The Secretary of State may by regulations amend the list in section 17ZA(6)(b) so as to—

(a) add an entry,

(b) remove an entry, or

(c) vary an entry.

17ZC Consideration of young carers’ needs assessments

A local authority that carry out a young carer’s needs assessment must consider the assessment and decide—

(a) whether the young carer has needs for support in relation to the care which he or she provides or intends to provide;

(b) if so, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and

(c) if they could be so satisfied, whether or not to provide any such services in relation to the young carer.”

(2) In section 104 of the Children Act 1989 (regulations and orders)—

(a) in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) before “(3B)” insert “(3AA),”, and

(b) after subsection (3A) insert—

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“(3AA) Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZB(9).””

Baroness Northover: I beg to move.

Baroness Hughes of Stretford: I would be grateful if the Minister could clarify the scope and impact of Amendments 241B, in particular, and 273A. This is a genuine question. I have read the note the Minister put out saying that the amendments provide clarification. I am talking about the right amendments, am I not? I beg your pardon; I misheard.

Amendment 241 agreed.

Amendment 241A

Moved by Baroness Northover

241A: After Clause 78, insert the following new Clause—

“Duty to support pupils with medical conditions

(1) The appropriate authority for a school to which this section applies must make arrangements for supporting pupils at the school with medical conditions.

(2) In meeting the duty in subsection (1) the appropriate authority must have regard to guidance issued by the Secretary of State.

(3) The duty in subsection (1) does not apply in relation to a pupil who is a young child for the purposes of Part 3 of the Childcare Act 2006 (regulation of provision of childcare in England).

(4) This section applies to the following schools in England—

(a) a maintained school;

(b) an Academy school;

(c) an alternative provision Academy;

(d) a pupil referral unit.

(5) In this section—

“the appropriate authority for a school” means—

(a) in the case of a maintained school, the governing body,

(b) in the case of an Academy, the proprietor, and

(c) in the case of a pupil referral unit, the managing committee;

“maintained school” means—

(a) a community, foundation or voluntary school, within the meaning of the School Standards and Framework Act 1998, or

(b) a community or foundation special school, within the meaning of that Act.

(6) The Education Act 1996 and this section are to be read as if this section were included in that Act.”

Amendment 241A agreed.

Amendment 241B

Moved by Baroness Northover

241B: After Clause 78, insert the following new Clause—

“Local authority functions relating to children etc: intervention

(1) Section 497A of the Education Act 1996 (which confers power on the Secretary of State to secure the proper performance of local authority education functions, and is applied to social services functions relating to children by section 50 of the Children Act 2004 and to functions relating to childcare by section 15 of the Childcare Act 2006) is amended in accordance with subsection (2).

(2) After subsection (4A) insert—

“(4AA) So far as is appropriate in consequence of a direction given under subsection (4A), a reference (however expressed) in an enactment, instrument or other document to a local authority is to be read as a reference to the person by whom the function is exercisable.

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(4AB) Subsection (4AC) applies if a direction given under subsection (4A) expires or is revoked without being replaced.

(4AC) So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the local authority to which the direction was given.”

(3) In section 15 of the Local Government Act 1999 (Secretary of State’s power to secure compliance with requirements of Part 1 of that Act) after subsection (6) insert—

“(6A) So far as is appropriate in consequence of a direction given under subsection (6)(a), a reference (however expressed) in an enactment, instrument or other document to a best value authority is to be read as a reference to the person by whom the function is exercisable.

(6B) Subsection (6C) applies if a direction given under subsection (6)(a) expires or is revoked without being replaced.

(6C) So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the best value authority to which the direction was given.””

Baroness Northover: I think that this is the amendment the noble Baroness was thinking about. I shall speak also to Amendment 273A, which is a technical amendment to bring the substantive amendment into force two months after Royal Assent. These amendments clarify the law in relation to the Secretary of State’s power to intervene in failing local authorities under the 1996 Education Act and the Children Act 2004.

In most cases, as noble Lords will know, government intervention in local authorities rests on the use of non-statutory improvement notices or, less often, on statutory directions to ensure that locally led improvement is effective. There are currently five local authorities in England under statutory direction, and 20 subject to improvement notices. The Secretary of State’s ability to remove functions entirely from a local authority is essential only in exceptional cases of persistent underperformance that put at risk the welfare of vulnerable children over an extended period.

Parliament agreed that those powers were necessary when it passed important provisions in the Education Act 1996 and the Children Act 2004. That legislation allows the Secretary of State to direct that where a local authority fails to perform its children’s services functions to an adequate standard or at all, those functions can be exercised directly by the Secretary of State or by a third-party nominee. For these powers to be exercised effectively, it is essential that the Secretary of State or the third-party nominee can fulfil all the functions required to keep vulnerable children safe and intervene to improve their life chances.

However, although this legislation is in place and its intention is clear, it leaves room for potential legal argument over how the courts would view a direction under subsection (4A). This is because, in introducing the provisions in the 1996 Act and the 2004 Act, Parliament did not clarify in legislation all the powers that are consequential upon those provisions. It is not clear beyond doubt, for instance, whether the family court would feel able to recognise a third-party nominee as if it were a local authority in care or adoption proceedings. There might also be some doubt as to whether the chief inspector had the powers necessary to inspect and report on a nominee’s performance of the local authority’s functions.

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We propose, therefore, to clarify the relevant legislation to put these questions beyond doubt. This is important to enable the Secretary of State to intervene not just where the most serious social care failures occur but in the interests of certainty for children who may be taken into care or placed for adoption. In order that these powers can be exercised effectively, the new clause makes it clear that where functions are being exercised directly by the Secretary of State himself or by a third -party nominee, the Secretary of State or his or her nominee would, for example, be able to apply for or be named in care orders under Section 31 of the Children Act 1989; exercise the functions set out in Section 92(2) of the Adoption and Children Act 2002; and exercise certain other court-related functions in the same way that the local authority can. This is clearly the intention and purpose behind the provisions in the Education Act 1996 and the Children Act 2004, but in such an important area that is critical to the safety of children it is essential that there is no room for uncertainty. This new clause therefore clarifies existing powers. It does not seek to expand them.

The amendment also makes it clear that, following a direction that local authority functions be exercised by the Secretary of State or a third-party nominee, other relevant references in legislation to a “local authority” should be read as references also to the Secretary of State or a nominee. For example, in relation to the chief inspector’s inspection functions and powers, such as under Sections 136 to 141 of the Education and Inspections Act 2006, the amendment will ensure that the performance of these functions by the Secretary of State or his nominee should also be subject and open to inspection in the same way as when those functions are performed by a local authority. We do not want to leave any uncertainty over Ofsted’s power to inspect children’s services in whatever form they might be delivered. I beg to move.

Baroness Hughes of Stretford: Will the Minister clarify a couple of points about the potential scope and impact of the amendment? I can readily understand what she is saying about the need for any third-party nominee that the Secretary of State appoints to take over the administration of children’s services to be recognised by the courts in any orders for which it needs to apply to protect the safety of particular children. Because these powers have been around for some time and have been exercised in relation to a number of local authorities by this and previous Governments, can the Minister provide an example of any problem that has led to the amendment being necessary?

Secondly and more fundamentally, and because in the reference back to parent legislation it is hard to discern scope and impact, will she clarify what proposed new subsections (6A), (6B) and (6C), mean in practice? I am not clear about why the reference here is to “a best value authority” and whether that means that the powers in the amendment under which the Secretary of State can intervene in a local authority go far beyond applying to a local authority that is failing in the performance of its duty. May it, in fact, be some reference to a local authority that is not achieving best value, according to someone’s criteria?

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I know I am not explaining that terribly clearly myself, but it seems that the wording here potentially widens the scope of these powers beyond their use in relation to what the Minister described at the outset as authorities that have failed and have persistently failed. This seems to be a much more generalised category of authority. I wonder whether she could put on record the department’s understanding of this issue in relation to proposed new subsections (6A), (6B) and (6C).

Baroness Northover: As the noble Baroness noted, these powers have been there but have not been used. I want to be extremely clear that this amendment speaks only to the very few cases where the capacity of local authorities to improve the quality of their children’s services is so seriously in doubt as to require them to be delivered by the Secretary of State or a third-party nominee. As she notes, we have never had to use this power.

Some examples may help to clarify the point. In the Isle of Wight, we asked Hampshire County Council to take over the delivery of services. In Doncaster, where there were huge problems, we considered using the power, but the council is now working with us to establish a trust that is clearly separate from the local authority. Therefore, the Secretary of State has decided not to remove the council’s statutory children’s services functions, and that will remain the position as long as good and constructive progress continues to be made. In both those cases, the decision was made that it was not necessary to use the powers that we are clarifying here. Nevertheless, given that those powers are there, and that it was envisaged in the 1996 and 2004 Acts that there could be instances where they needed to be used, we feel that there needs to be absolute legal clarity about the full range of powers that Parliament intended.

I re-emphasise that the powers we are talking about here in relation to children’s services would be used only in cases of extreme failure. As I say, not even in the two cases that I have cited, where things were extremely problematic, as the noble Baroness will know, were the powers used.

Baroness Hughes of Stretford: Can the Minister possibly write to me about this? I am particularly interested in proposed new subsections (6A), (6B) and (6C). She said that the powers would be used only in cases of extreme failure. Is that extreme failure in the delivery of services or is it failure, on somebody’s definition, to achieve “best value”? In other words, it is not clear whether the reference here to the Local Government Act 1999 and the references to “best value” authorities go beyond failure in service delivery and performance and could actually be a wider and more general definition of a local authority failing to deliver best value.

Baroness Northover: Perhaps the best thing would be for me to reiterate that the Secretary of State’s ability to remove functions entirely from a local authority is essential only in exceptional cases of persistent underperformance that puts at risk the welfare of vulnerable children over an extended period. I hope that that reassures her.

Amendment 241B agreed.

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4.30 pm

Amendment 241BA

Moved by Lord Nash

241BA: After Clause 78, insert the following new Clause—

“Disqualification from carrying on, or being employed in, a children’s home

(1) Section 65 of the Children Act 1989 (person disqualified from fostering a child privately to be disqualified from carrying on etc children’s home) is amended as follows.

(2) Before subsection (1) insert—

“(A1) A person (“P”) who is disqualified (under section 68) from fostering a child privately must not carry on, or be otherwise concerned in the management of, or have any financial interest in, a children’s home in England unless—

(a) P has, within the period of 28 days beginning with the day on which P became aware of P’s disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and

(b) P has obtained the appropriate authority’s written consent.

(A2) A person (“E”) must not employ a person (“P”) who is so disqualified in a children’s home in England unless—

(a) E has, within the period of 28 days beginning with the day on which E became aware of P’s disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and

(b) E has obtained the appropriate authority’s written consent.”

(3) In subsection (1), after “children’s home” insert “in Wales”.

(4) In subsection (2), after “children’s home” insert “in Wales”.

(5) In subsection (4), after “subsection” insert “(A1), (A2),”.

(6) In subsection (5) after “subsection” insert “(A2) or”.”

Lord Nash (Con): My Lords, I will speak to all the amendments in this group: Amendments 241BA, 241C, 241D, 273B and 273C.

Four of these amendments will make small changes to the Care Standards Act 2000. My intention in proposing the amendments is to pave the way for the introduction of a reformed framework for regulating and inspecting children’s homes. Amendment 241BA amends Section 65 of the Children Act 1989, which concerns the disqualification of persons from carrying on working, or being employed in, a children’s home.

In March 2013 there were 4,930 children living in children’s homes, representing just over 7% of all looked-after children. The majority of children living in homes will have been placed there by local authorities because they cannot be cared for in a family setting. They will usually be older; children in homes have an average age of over 14. A recent research study found that 62% of children in children’s homes had clinically significant mental health difficulties, and 74% were reported to have been violent or aggressive in the preceding six months. Few children stay in one children’s home for more than a year; 30% live outside the local authority responsible for their care, often at some considerable distance.

Given these children’s vulnerability, it is particularly worrying that there are significant concerns about the quality of care in some homes. While by 31 March 2013 the majority of homes were judged by Ofsted to be good or outstanding, a significant minority, 28%, were judged only adequate or poor against current minimum standards.

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My department has been pushing forward for some time with a programme for reforming the pattern of care in children’s homes. We have recently consulted on some immediate changes to regulations designed to more effectively safeguard children living in children’s homes, especially those in distant, or out-of-authority, places. We have also published a comprehensive data pack, with details of children’s homes’ locations, quality and costs, and of the needs of the children in their care. We are considering ways to enhance the training and skills of the children’s homes workforce, and how to support improved commissioning of homes by local authorities.

As my department worked with Ofsted and others on plans for improving care in children’s homes, we reached a view that the current regulatory framework, established by the Care Standards Act 2000, is having a limiting effect on our ambitions to drive improvements in the quality of care provided by homes. In our view, it should only be acceptable for any children’s home to offer care that is “good”, with all homes having a clear remit to strive for excellence in respect of the children they care for. These amendments put beyond doubt the fact that the Secretary of State can make regulations that are able to define high standards for all children’s homes. Every home must have the capacity to enable all the children it cares for to achieve their full potential. These amendments pave the way for my right honourable friend the Secretary of State for Education to develop new, more stretching, quality objectives and standards for children’s homes.

We intend to support innovation by creating regulations which specify high objectives and standards. Homes should be free to decide how they achieve these standards. We intend to set high standards for homes in a number of areas, such as requirements for effective leadership and management; for the provision of excellent education; and for access to healthcare that meets recognised clinical standards. We will, of course, have to be confident that homes respond effectively to the risks and vulnerabilities faced by the children they care for. We have worked very closely with Ofsted to develop the proposal that I am outlining. As the inspectorate for children’s homes, Ofsted welcomes our aim of taking a decisive step away from a regulatory system based on minimum standards.

Our work with Ofsted also identified a small but potentially significant problem with the process involved when Ofsted has reason to consider whether a person should be disqualified from carrying on working, or being employed, in a children’s home. This power is set out in Section 65 of the Children Act 1989. I am tabling a small amendment to this section to improve the practical workability of this process. The amendment introduces a time limit of 28 days for a person to inform Ofsted that he or she has become disqualified, perhaps as a result of a past offence, in order to seek Ofsted’s consent to be involved in a children’s home. Without this explicit waiver from Ofsted, the person would be committing an offence.

Officials from my department have had the opportunity to share our thinking on all these amendments with representatives of local authorities, of children’s homes providers and of the voluntary sector campaigning for

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children. These services are united in their broad support for the direction of travel I am signalling today, which marks a decisive step in driving forward our ambitions for reforming the children’s homes sector. We are determined to improve the quality of all children’s homes, so that the only acceptable standard for children’s homes is good care, with all homes having a clear remit to strive for excellence. I hope I have explained the important objectives that these amendments will enable us to achieve, and that noble Lords will support them.

The Earl of Listowel (CB): Perhaps the best way I can thank the Minister is by speaking as briefly as possible. Having worked in residential settings with young people and spent a week in a children’s home, and having been deeply concerned about the quality of the experience for children in children’s homes since I first entered this House, my perception is that the Government have taken a very careful and thoughtful approach to meeting the needs of these very needy young people—albeit that they are few in number. In the past two years or so we have realised that a number of young girls have been sexually exploited, often in children’s homes.

The Government have responded admirably to this challenge. Tim Loughton MP, the former Children’s Minister, has children’s homes in his Hove constituency, so he is aware of the problem. He addressed it carefully by setting up three working groups to look at the issue, which resulted in regulations being laid. The current Children’s Minister, Edward Timpson MP, has pursued that direction of travel with the attention to detail that is familiar to those who have worked with him. I am deeply grateful for that. The Minister is absolutely correct to emphasise the importance of staff training. It is extremely encouraging that the Government are taking this issue so seriously.

Amendment 241BA agreed.

Amendments 241C and 241D

Moved by Lord Nash

241C: After Clause 78, insert the following new Clause—

“Objectives and standards for establishments and agencies in England

(1) In section 22 of the Care Standards Act 2000 (regulation of establishments and agencies), in subsection (1), for the words from “may in particular” to the end substitute “—

(a) regulations made by the Secretary of State may in particular make any provision such as is mentioned in subsection (1A), (2), (7) or (8), and

(b) regulations made by the Welsh Ministers may in particular make any provision such as is mentioned in subsection (2), (7) or (8).”

(2) In that section, after subsection (1) insert—

“(1A) Regulations made by the Secretary of State may prescribe objectives and standards which must be met in relation to an establishment or agency for which the CIECSS is the registration authority.””

241D: After Clause 78, insert the following new Clause—

“National minimum standards for establishments and agencies in England

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In section 23 of the Care Standards Act 2000 (national minimum standards), after subsection (1) insert—

“(1A) The standards applicable to an establishment or agency for which the CIECSS is the registration authority may, in particular, explain or supplement requirements imposed in relation to that establishment or agency by regulations under section 22.””

Amendments 241C and 241D agreed.

Amendment 242

Moved by The Earl of Listowel

242: After Clause 78, insert the following new Clause—

“Part 4AChildren’s centres

Birth registration pilot scheme

Local authorities must establish a pilot scheme to trial the registration of births within children’s centres, and evaluate the effectiveness of the scheme to—

(a) identify and contact new families; and

(b) enable children’s centres to reach more families, in particular those with children under the age of two, or who the local authority consider—

(i) hard to reach, or

(ii) vulnerable.”

The Earl of Listowel: My Lords, in moving Amendment 242, I wish to speak also to my Amendment 244.

Amendment 242 would enable the introduction of a pilot scheme,

“to trial the registration of births within children’s centres”.

Currently, only a small number of centres offer birth registration—the practice is not widespread. Figures from the 4Children charity’s children’s centre census of 2013 suggest that only 6% of centres currently provide birth registration. Looking ahead to the next 12 months, only 13% of respondents to the census said that they expected to be offering birth registration in a year’s time.

A report from the All-Party Parliamentary Group on Sure Start Children’s Centres was published in July, entitled Best Practice for a Sure Start, which highlighted the positive impact that the provision of birth registration can have for centres. The report included evidence submitted by the Department for Education, which stated:

“The opportunity to register births in children’s centres is potentially a very effective means of alerting parents to the support services available and the benefits of accessing these services through children’s centres”.

The department also highlighted the experience of three local authorities which currently offer birth registration services: Manchester, Bury and York. Based on these case studies, the department identified a number of benefits of implementing birth registration in centres. First, the benefit of improved reach; there has been a concern that in the past, children’s centres were not reaching the hardest to reach, particularly young teenage mothers. It is considered that this will improve the ability to get at those hard to reach groups. Secondly, parents seem to be more likely to come back again. Once they have visited to do the birth registration, practitioners find that they come back to the service. The Benchill centre in Manchester had a re-engagement rate of 87.5% in 2012-13; which means that 87.5% of those who came for the registration must have come back again for further services.

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Thirdly, there is a danger of stigma in visiting a children’s centre; people may feel that they can go only if there is something wrong with them. This, however, is a universal service. Everyone would go there to register their child, so there would be no stigma attached to it. Fourthly, practitioners talk about this as an important step forward in terms of involving fathers. Fathers will go along when the child is going to have the birth registered. I am not quite sure of the technical details as to why it is so important for fathers to be involved in the registration process—perhaps one of your Lordships can tell me in a minute—but there is a strong feeling that more fathers will be involved early in their child’s life this way. Finally, it is an opportunity to showcase to parents the wonderful services that are available to them at the children’s centres.

There is a strong case for increasing provision of birth registration services in children’s centres. This would be a very good means of doing so. It is not onerous for local authorities to deliver this. It is not costly to do. The risk is that with local authorities currently carrying such burdens, this is one trick that they might miss. This would mean families and children missing out on the benefits of it. I hope that the Minister can give a sympathetic response.

I will move on to Amendment 244, which is to do with information and data sharing. It will require NHS trusts to share data on live births with local authorities in order to facilitate greater engagement with parents through children’s centres and other outreach services. This amendment would support children’s centres’ ability to engage with new parents. Sharing the live-birth data would make a significant contribution to enabling centres to identify within their reach area the new parents with whom they have not yet been in contact; allowing them to target those parents they may have missed and reach out to them accordingly.

Your Lordships may feel that this second amendment is a little bit deficient in that it is not ambitious enough, because there are other areas that children’s centres could be advised about better—for instance, the troubled families agenda. Centres do not necessarily know about who Louise Casey is dealing with through the troubled families agenda. Also, there are things called multi-agency risk assessment conference boards, dealing with domestic violence. Again, children’s centres could benefit by being given information about what those boards know about so that they can reach out to families where there is domestic violence. So your Lordships may feel that something further should be added to this amendment and more information should be shared with children’s centres. I hope that the Minister will be sympathetic to this second amendment, too. I beg to move.

Baroness Jones of Whitchurch (Lab): My Lords, I will speak to Amendments 247 to 249 in our names. In doing so, I would like to support the amendments of the noble Earl, Lord Listowel, which are very much on a similar theme.

Our first amendment, Amendment 247, seeks to improve the information available on children’s centres and to hold the Government to account for their failure to deliver a vibrant network of children’s centres since coming into office. It requires the information to

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be published separately and regularly so that the trends can be clearly observed. The information that is collated on children’s centres is buried and inaccessible. It is tempting to say that this is deliberate since the Government do not want to admit that the Prime Minister has broken the commitment he gave before the election to protect the Sure Start network.

Thankfully, as a result of the work of 4Children and its 2013 children centre census, we now know that 566 fewer children’s centres are serving our communities, and that many of those that still exist are having to cut their hours or charge for services. This is a very long way from the concept of universal early-years provision, which was so welcomed when it was introduced by the previous Government. We would like to see the data set out in a structured and accessible form.

Amendment 248 on the issue of birth registration is similar to that raised by the noble Earl, Lord Listowel. Like him, we believe that there are very real advantages in births being registered at children’s centres. It would encourage a wider group of parents to visit the centres and become aware of the services on offer. It would also enable the staff to have a point of contact to reach out to isolated or dysfunctional families and offer them help.

We have often rehearsed the arguments in favour of early intervention to improve children’s life chances. The reports of Graham Allen and Frank Field both demonstrated that money spent on early years is cost effective in the longer term and helps children meet their full potential. The National Children’s Bureau’s literacy initiative is an excellent example of early intervention that can grow out of children’s centres, combining home visits with increased parental involvement in other well-being events and a dramatic improvement in child literacy. That is just one example.

Unfortunately, while it is possible to use children’s centres for birth registration if the local authority agrees, as the noble Earl, Lord Listowel, pointed out, so far only 6% of centres do that. I hope that the Minister will feel able to support our amendment, given that her own department gave evidence to the Sure Start report highlighting the advantages of birth registration at children’s centres. Our amendment requires the Secretary of State to commission an independent study into the impact on the welfare of children of requiring births to be registered in this way, supported by the option of pilot schemes to inform the study.

Finally, Amendment 249 is also similar to that of the noble Earl, Lord Listowel. It requires NHS trusts to share details of live births with local authorities so that children’s centres and other early-years providers could follow up with appropriate outreach services. Again, there is good practice in some places where data are already shared. Other trusts feel that they are unable or unwilling to share and are concerned about confidentiality issues. This is where the Government could help by being much clearer about the advantages of sharing and the terms on which it should be done. How can local authorities be expected to carry out their safeguarding and child welfare responsibilities or plan adequately for local services if they are not made aware of the total picture of births in their area?

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I hope the Minister will support our amendments. When this matter was discussed in the Commons, Jo Swinson reported that a short-life task and finish group had been set up to consider these issues and that it had subsequently made recommendations to the Minister. I hope the noble Baroness, Lady Northover, is now in a position to share those recommendations with us, and to tell us what action will be taken to follow it up. I look forward to hearing from her.

4.45 pm

Baroness Massey of Darwen (Lab): My Lords, I support Amendments 242 and 244 in the name of the noble Earl, Lord Listowel, but ask the Committee’s permission to sit down while I speak. I also support my noble friend Lady Hughes in her forceful speech about early intervention.

During our consideration of the Bill, many concerns have been raised about services working together for the benefit of children. Indeed, an earlier amendment—we discussed it some days ago, or possibly some weeks ago—was specifically about promoting integration, with lead professionals taking a role in ensuring that integration happens. I remember—again, it was some time ago—the noble Baroness, Lady Howarth, in one of her many excellent and wise contributions, saying that without data, strategy is not possible; the noble Baroness, Lady Hughes, also hinted at that. I agree with that and I think that the amendment could support the development of a strategy for children and families at a local level.

The amendments tabled by the noble Earl, Lord Listowel, are an extension of that concept of integration and improving data sharing in children’s centres. The noble Earl has described the need for NHS trusts to share with authorities records of live births to parents resident in their area in order to facilitate the identification of and contact with new families through children’s centres and other early outreach services. To this end, as he said, this should include the format of arrangements, the safeguarding of information, the regularity of data transfer, timescales and safeguards against inappropriate sharing.

All this reminds me of a report that some noble Lords may remember, Every Child Matters, which came out in about 2004—I can see lots of nods. This was a consultation on what matters for children, followed by a government document, in the wake of the horrendous death of Victoria Climbié and the report by the noble Lord, Lord Laming, which concluded that the poor co-ordination of services, including health, police, education and social services, had contributed to that child and other children falling through the net. It was a seminal document. It had influence in involving children and young people in setting priorities and in getting services for children to work together, to look at their functions in working together and to talk to one another. This group of amendments shows that we need to look at all that again; we need to look at the integration of services.

As others have said, poor data sharing can prevent organisations, including children’s centres, from helping vulnerable children and their families. If they had birth data, they could address the needs of such families

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early. I remember one children’s centre that I visited in the north of England having courses for young mothers. These courses became a group support initiative to talk about breastfeeding, about bringing up babies and toddlers and about which services people could access—for example, classes on a variety of issues. Crèches had been set up at the centre. Sometimes the centre was able to offer intensive support for parents who had difficulties with finances, for example.

The organisation Action for Children has set out reasons for effective data-sharing systems and has listed some difficulties, which I hope the Minister will be able to address. Those difficulties include the fact that children’s centres may be split across district and health services; there may be no data-sharing protocols; and there may be a feeling that such systems are too resource-intensive. However, there are serious impacts in not sharing data. The noble Earl has listed some such impacts of delaying the identification of vulnerable children and their families and delaying help for such families.

When data sharing is effective—according to Action for Children, it is effective in 32% of children’s centres—local arrangements have been set up between health and the local authority. There have been meetings and good relationships between, for example, health visitors and midwives, and there has been early identification of vulnerable families and of children who are likely to have difficulties, such as those with disabilities. As others have said, this help should be offered early in order to be most effective.

One of the key issues is that data sharing forms a basis for people from various disciplines who support families to meet and to talk about the concerns, not just swap bits of paper. It has always seemed to me that people talking about issues to one another, either formally or informally, is a very good way of ensuring integrated support for families. I look forward to hearing the Minister’s reply.

Baroness Tyler of Enfield: My Lords, I support Amendment 242, to which my name is attached. The noble Earl, Lord Listowel, has already set out very clearly the arguments in favour of piloting the registration of births at children’s centres, but I will just confirm my personal support for this amendment.

Children’s centres do many good things, but one of their absolutely core values lies in their ability to reach out to some of the most vulnerable and disadvantaged groups: people who, for all sorts of reasons, are unlikely to enter into sustained contact with public services without help in doing so, but who are also the most likely to benefit from them. We have already heard the statistics from the recent children’s centre census from 4Children. That is encouraging in showing us that the widening reach is really happening and that more children’s centres are being successful in reaching out to some of the most disadvantaged. The location of birth registration services within children’s centres will really help with early intervention in the lives of disadvantaged children.

I am sure that all noble Lords in this Committee are well aware of the evidence of the huge importance of early intervention and how incredibly important what

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happens in the first three years of a child’s life is. Indeed, as I know from my work on the All-Party Group on Social Mobility, in some ways those first three years can almost determine life chances for a lifetime. They are absolutely critical. That is why I think that getting parents through the doors of children’s centres, ideally within six weeks of their child’s birth, and exposing them to the range of services, help and support available is critical. It is also vital to help nurture those early relationships between parents and professionals, which, again, can make such a difference. That is why I am absolutely delighted that encouraging parents to register children’s births at a local children and family centre is now part of Liberal Democrat party policy.

My final point is that the proposed birth registration pilot scheme should be seen as part of a wider strategy to provide more integrated and cohesive public services. Children’s centres not only provide childcare, as we talked about earlier, but a range of valuable help, including parenting sessions, health and well-being advice, information on jobs and employability, et cetera. For example, things such as co-locating health visitors within children’s centres enable parents to have the opportunity to speak to a health visitor about any concerns they may have, for example in relation to their child’s sleeping patterns, breastfeeding and their own health and well-being. Co-locating important services in this one-stop-shop way has a whole range of very powerful benefits. It should increase take-up and should also be value for money. It makes terribly good sense and is a real win-win. Can we try it out rather than just talk about it?

Baroness Massey of Darwen: I apologise for addressing my noble friend Lady Jones as my noble friend Lady Hughes throughout my speech. They are not the same person.

Baroness Northover: My Lords, we all merge into one after a while. I start by emphasising to noble Lords that the Government believe that children’s centres provide a very important service and have a vital role to play in supporting outcomes for children and families.

I turn, first, to the issue of data sharing. We agree on the importance of information sharing. Clearly, professionals should work together to identify families who are in need of support and offer them that support. Indeed, the Department for Education’s statutory guidance for children’s centres is clear that health services and local authorities should share information, such as live birth data, with children’s centres on a regular basis where doing so enables professionals to work better with one another to provide services for families. Moreover, current legislation makes it clear that information can already be shared where there are local agreements and processes in place that meet the legal requirements about confidentiality, consent and security of information. Naturally, we wish to support information sharing between professionals. In order to encourage this, my colleagues at the Department of Health have undertaken to liaise with NHS England and other partners to promote the sharing of live birth data and to explore the practical issues.

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5 pm

We wholeheartedly support the intention behind this proposed new clause, which is to ensure the most effective local practice. But I hope your Lordships will agree that legislating is not the best approach here. Evidence, as set out in Jean Gross’s report, shows that the most challenging barriers to effective information sharing are about institutional and professional practice and the culture and trust between early-years practitioners and healthcare professionals, not national regulation. I think this is the group to which the noble Baroness, Lady Jones, was referring, and that my honourable friend Jo Swinson referred to.

I turn to the issue of registering births at children’s centres. Local authorities can already make children’s centres one of the places where parents can register a birth. We know that some local authorities are already providing this service and that it is well received. We very much welcome this approach and encourage other local authorities to consider whether it would be good for their local communities. Going to a children’s centre to register their baby’s birth means that parents know where their local centre is and are aware of the services they can access. The noble Earl, Lord Listowel, made a very compelling case, supported by others, including my noble friend Lady Tyler. Clearly, it must be for local authorities to determine the shape and make-up of their local services but, as I say, noble Lords have made a very cogent case on this.

The Government are committed to raising awareness of the opportunity that already exists to use children’s centres for registering births, along with the benefits that may accrue and the obstacles to be overcome in doing so. Indeed, in October my honourable friend Liz Truss MP spoke about this issue during a Select Committee evidence session and committed to meeting Councillor David Simmonds of the Local Government Association to see how best to progress engaging local authorities and children’s centres with the registrars to make this happen locally.

Additionally, over the summer, we asked 4Children, part of our Children and Young People’s Strategic Partnership, to circulate this information via its newsletter, which is sent to 50,000 colleagues working with families and cascaded to at least this number again. 4Children has also placed this information on its website so that as many people as possible are able to consider the benefits of registering births at children’s centres and are able to pursue this locally. I hope that the noble Earl will be reassured that this very good idea is being taken forward. I note what my noble friend Lady Tyler said about other sources of information and other services that might be provided. This is quite an interesting test case of trying to take this forward.

However, we agree that more could be learnt about whether registering a baby’s birth at a children’s centre has an impact on how likely the parents are to continue to access those services, which are intended to enhance the welfare of children. The Department for Education will look at how it can gather examples and disseminate its findings to help inform the decisions made by local authorities.

Turning to the information and data that should be published with regard to children’s centres, I hope that your Lordships will accept that the current level

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of published data already provides effective local accountability and transparency, and informs the public about children’s centres and the services available. Local authorities update information about their children’s centres on the Department for Education’s Sure Start On database as and when changes occur. Information is then made available on the Government’s website on a daily basis. This enables the public to see a list of all the children’s centres and provides contact details for each of them. To require all local authorities to submit this information to the Secretary of State formally would be an unnecessary burden on local authorities.

The Department for Education also collects annual financial data from each local authority, which are published on its website. The data show the yearly budget and actual spend for each local authority. I point out that funding for early intervention has increased from £2.2 billion in 2011-12 to £2.5 billion in 2014-15. Local councils continue to have the freedom to spend this where it is most needed to best support the needs of their local communities, but I am very pleased that that figure has increased, in recognition of the importance of this area.

I think I have addressed most of the issues, but I will get back to noble Lords if need be. I urge the noble Earl to withdraw his amendment.

Baroness Jones of Whitchurch: Will the Minister say a little more about the Jo Swinson task-and-finish group? I understand that culture and professional practice were barriers to data sharing, but did any positive recommendations come out of that group that the Government are intending to take forward, or just a list of barriers that make these things more difficult?

Baroness Northover: I think it would be best if I wrote to the noble Baroness with further details and copied the letter to other noble Lords, who will clearly be very interested in what the group reported.

The Earl of Listowel: My Lords, I thank all noble Lords who took part in this debate. I particularly thank the Minister for her careful, sympathetic and encouraging response. It is good to hear that Councillor Simmonds has been meeting her department with regard to this matter and about the work that has been undertaken through 4Children to circulate information about this. I know that the Children’s Minister occasionally writes to local authorities on important matters. Perhaps this could be kept in mind, especially if we do not make the progress that we hope we will make in this area.

I omitted to pay tribute to Andrea Leadsom MP in my opening remarks. She is chair of the All-Party Group for Sure Start Children’s Centres which produced this report, and she tabled an amendment very similar, perhaps identical, to this in the other place, so she started the ball rolling on this.

The noble Baroness, Lady Massey, talked about information sharing. I remember working in a play scheme five or six years ago. I worked with a boy who was just about to be adopted. We did not know he was going to be adopted. He behaved appallingly, and it would have been so easy for us to come down hard on

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him because we did not know that he had just come out of care and was moving into an adoptive family. It is so important that people on the front line know what is going on with a family or with a child. How can they react sensibly otherwise?

I take what the noble Baroness says about the culture, the people and things like what is being done for social work. One hopes that the appointment of the Chief Social Worker will give front-line professionals the confidence to share information. Occasionally there are inhibitions about sharing information for legal reasons, and that may apply to some of this information; I am not too sure. I will look into that, and if it is an issue, I will come back to the Minister. I am grateful to the Minister for what she said. I will take it away and think about it. I beg leave to withdraw the amendment.

Amendment 242 withdrawn.

Amendment 243

Moved by Baroness Walmsley

243: After Clause 78, insert the following new Clause—

“Part 4AProtection of children

Actions due to a belief of possession by spirits

(1) Section 1 of the Children and Young Persons Act 1993 (cruelty to persons under sixteen) is amended as follows.

(2) In subsection (1) omit the words “and has responsibility for any child or young person under that age,” and for the word “him” substitute “any child or young person under that age”.

(3) In subsection (2), after paragraph (b) insert—

“(c) in subsection (1) the meaning of “ill-treats” includes the communication by word or by action a belief that the child is possessed by evil spirits or has supernatural harmful powers—

(i) to the child concerned, or

(ii) to anyone connected to that child.””

Baroness Walmsley: My Lords, I shall speak also to Amendment 246, which I have agreed should be grouped with Amendment 243, although the two matters are somewhat different, in the interest of trying to save a bit of time. I am afraid that, because both require considerable explanation, I shall have to move from my usual policy of making very short speeches, so I hope that the Committee will bear with me. As the Committee knows, the noble Lord, Lord Laming, reported on the sad death of Victoria Climbié, but he cannot be here this afternoon. He has kindly allowed me to say that he supports this amendment.

Amendment 243 amends Section 1 of the Children and Young Persons Act 1933—“Cruelty to persons under sixteen”—to clarify that to communicate to a child, or anyone connected to the child, that the child is possessed by evil spirits or is a witch amounts to cruelty and therefore contravenes the Act. The Act sets out several specific offences, although it does not mention the word “cruelty” in the text. For example, it says that if anyone who has responsibility for a child,

“wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes … any mental derangement … that person shall be guilty of a misdemeanour”.

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So far, so good, you might think, but there is a group of children who have been treated most cruelly, even killed, as a result of people telling them and others that they are possessed by evil spirits or have supernatural harmful powers. Currently, it appears that the law does not accept that to cause a child such terrible mental trauma is cruel and against the 1933 Act. It also appears that it is not accepted that telling other people that the child is possessed is against the law, even though doing so often causes superstitious third parties to ill treat and even kill the child.

This amendment is very carefully worded. It does not make it an offence to believe that the child is possessed. It does not make it an offence to go away privately and pray or try to exorcise the spirit that you believe is present in the child. It just makes it an offence to traumatise the child by telling him or to pass on your belief to other people in the knowledge that it might cause them to harm the child.

The first part of the amendment would delete the words,

“has responsibility for a child or young person”.

It is not clear why this limitation was ever in there because cruelty to children does not change its nature depending on whether you have responsibility for them or not. Why should a neighbour or a lodger escape prosecution when a babysitter does not? In relation to witch branding, we must remove these words because they would allow a pastor or the sexual partner of a relative to escape, too, even though such people do perpetrate abuse, as was the case in the murders of Kristy Bamu and Victoria Climbié.

The second part of the amendment clarifies the meaning of “ill-treats” in order specifically to include the communication by word or action of a belief that the child is possessed by evils spirits or malign powers, either to the child or someone connected to him. Please note that, although these children are often referred to as witches, the word “witch” does not appear in the amendment in order not to catch the benign type of witch, commonly known as white witches, or the fantasy that is often played out at Halloween. The intention of the amendment is to outlaw not harmless practices but a proven and serious form of child abuse.

Branding a child as a witch is an incitement to hatred and an attack on the integrity of the child. Once a child is called “a witch” or “possessed”, he or she is stripped of his or her innocence and considered as a perpetrator of evil acts, instilling fear and providing a moral ground for others to ill treat the child. Those who believe in the exorcist rite of “beating the devil out of the child” are then given leeway to do so. While parents and guardians can either be prosecuted for harming a child or appropriate social work interventions can be made under civil law, a faith leader, neighbour or member of the family’s friends and community who triggered the process of abuse by accusing or “validating” the accusation against a child cannot be brought to account under child cruelty offences.

I have been encouraged to lay this amendment by the charity AFRUCA, which was established in the wake of the Victoria Climbié tragedy. Victoria’s killers justified their abuse by their belief that she was a witch. Since then, the work of AFRUCA has shown the need

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for clarification of the law. For more than 11 years they have made efforts to raise awareness in the community and among the public about the plight of these children, but all that work was not enough to prevent the terrible death of Kristy Bamu in December 2010 and other abuses linked to witchcraft accusations. Kristy died with 135 injuries inflicted on his body.

Various consultations carried out in the community by AFRUCA showed that the overwhelming majority of those who took part believe that a law would go a long way to stop the harmful behaviour of rogue faith leaders. The branding of children as witches is not a long-standing cultural tradition either in the UK or overseas. It is a relatively recent phenomenon, in part arising from a deliberate exploitation of families for monetary gain or heightened social status by unscrupulous individuals calling themselves faith leaders.

5.15 pm

This change in the law would inform social workers and others that such allegations amount to emotional abuse and are not part of any culture or religion and therefore should not be respected as such. AFRUCA’s letter to the right reverend Timothy Thornton, the right revered Prelate the Bishop of Truro, makes its intentions clear. It said:

“AFRUCA is not seeking to criminalise a belief in the existence of evil spirits, or a belief that an evil spirit could inhabit a child. While we do not personally hold such beliefs, we respect others’ rights to freedom of thought, conscience and religion, and to freedom of expression. However, such rights must be exercised without violating the child’s right to protection from significant harm. Presumably the aim of any exorcism is to remove the evil spirit without causing irremediable harm to the child, the innocent receptacle, yet telling the child that he or she possesses evil powers causes injury that lasts long after the spirit has been removed”.

I very much agree with this sensitive and respectful approach and my amendment reflects that. It would inform children and their families, and potential offenders, that this practice will not be tolerated. It would empower communities that are asking for this change.

Making allegations of possession or supernatural powers is a globally recognised harmful practice that is already outlawed in a number of African states, such as Nigeria, Kenya, Malawi, South Africa and Tanzania. It is similar to other harmful practices such as forced marriage, which was an issue that the UK Government at first thought could be challenged without creating a specific criminal offence but which now has been outlawed. In correspondence, the Minister, Edward Timpson MP, claims that if an expression of a belief causes a child significant harm, it is child abuse and already unlawful under civil and criminal legislation. The problem is that the Government refuse to confirm that such expressions of belief cause significant harm to children. If Ministers agree, it follows that the law should make it clear that such allegations are criminal offences under Section 1 of the 1933 Act. It would be very strange to say that all forms of injurious emotional abuse of children should be criminal except this one. If Ministers do not agree that children suffer long-lasting traumas from these allegations, I invite my noble friend to explain why not.

The Minister, Mr Timpson, claims that a majority of the National Working Group on Abuse Linked to Faith or Belief were not in favour of legislation “of this sort”. The reason why they objected was that you

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cannot criminalise witch branding because of Halloween, white witches and so on, but my amendment is carefully worded to avoid this. He states that religious belief should not be criminalised. That is quite right but, as I explained, my new clause avoids that. The Government are concerned that making witch branding a criminal offence might “drive it underground” or make children and parents less likely to go to the authorities for help. This is a familiar argument, which was used in relation to FGM and forced marriage, but the truth is the reverse: until such practices are made unlawful, they continue to exist and victims continue not to seek help. The Government eventually accepted this in the cases of FGM and forced marriage. I hope that they will accept the same in the case of witch branding.

I turn briefly to Amendment 246. Its simple purpose is to extend to part-time schools the same protection for children against physical violence as exists in all full-time education establishments, in children’s homes and in local authority foster homes and early years provision. Physical violence such as smacking and caning was prohibited in all maintained schools in 1987 and, ever since, the prohibition has gradually been extended to other settings by various pieces of legislation. The Education and Skills Act 2008 amended the Education Act 1996 to extend the ban on corporal punishment to independent educational institutions—that is, part-time providers which are not schools. However, this latter provision has never been implemented.

The defence of reasonable punishment may be available to adults in circumstances where they are charged with common assault, having smacked a child while being in loco parentis. However, because of the failure to implement the measure in the 1996 Act, although teachers and other staff in schools cannot argue this defence, it is still available to adults in part-time settings such as supplementary schools, Sunday schools and madrassahs, private tutoring and leisure facilities for children, as well as by other adults to whom parents may entrust their children, such as close relatives, step-parents and partners.

Following concern expressed about allegations of physical punishment and abuse to children attending supplementary and part-time faith schools, the Labour Government commissioned Sir Roger Singleton to produce a report on the matter. It was published in March 2010 and is entitled Physical Punishment: Improving Consistency and Protection. He reports that during his consultations there was a significant view, including from Muslim leaders and within African Christian churches, that the protection of children against physical punishment should be extended to all forms of care, education and instruction outside the family. This was Sir Roger’s first and main recommendation. Unfortunately, however, his recommendation has never resulted in a change in the law or in implementation. The fact is that children are still being subjected to physical violence in the name of discipline in some of these settings. We need to make it absolutely clear that the will of Parliament is that children are not abused physically in any setting where their parents entrust them to a teacher, coach, religious leader or anyone supporting them.

In 2010, my honourable friend Annette Brooke MP and my right honourable friend David Laws MP laid an amendment to the Children, Schools and Families

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Bill to implement the ban in all settings and I laid a similar amendment in your Lordships’ House. We argued that there was no justification for failing to protect children from physical punishment in part-time settings. All the children’s organisations and the vast majority of children themselves agree, as do many of the public. The Mosques and Imams National Advisory Board and the Muslim Parliament strongly support the prohibition of physical punishment in madrassahs. Similar opposition to physical punishment in the context of religious teaching and worship was expressed by Africans Unite Against Child Abuse, so there is a lot of support for equalising the protection of children wherever they are studying.

I hope that my noble friend the Minister will be able to tell me that the Government are at last willing to implement the ban in the Education and Skills Act 2008. Children deserve our protection. Violence is no way to enforce either learning or discipline and we need to make that absolutely clear. Working with communities is all very fine and welcome but there are still some places where the general disapproval of such behaviour is ignored and many parents are reluctant to stand up and complain because of the pressure from their fellow faith adherents and senior people in the faith. We need to support those parents and make it easier for them, since it has proved very difficult to stop this behaviour by any other strategy. I beg to move.

Baroness Brinton (LD): My Lords, with the permission of the Grand Committee, I will speak sitting down. I declare an interest as a trustee of UNICEF. My name is on Amendment 243 and I support all that my noble friend Lady Walmsley has said. I wish to add the following. Given that the last detailed research on this topic was carried out more than seven years ago, I believe that it is important for the Government to commission a study to estimate the number of cases of possession or witchcraft among children. Following the dreadful Victoria Climbié case and one or two other well publicised cases, these cases are clearly still arising. The Metropolitan Police have reported more than 81 cases over the past 10 years. I suspect that the position is worsening rather than improving.

The impact of being called a witch or of possessing evil spirits is traumatic. AFRUCA—Africans Unite Against Child Abuse—told the story of Amelia, the mother of young Luke, who has a mild form of epilepsy. She said that,

“when Luke was about three and a half, he had an epileptic episode at a church service.

The pastor noticed and immediately turned to the congregation and said, ‘Here is a manifestation of the devil. This boy is possessed by evil spirits.’

The consequences were immediate and very upsetting. I saw the older children shunned Luke and when he approached friends who were his own age and too little to understand what was happening I saw their parents calling them to come away from Luke. We protected him from knowing what was happening, of course, but I was angry and my husband was even angrier.

We tackled the pastor, and when he realised Luke had been experiencing an epileptic seizure he was initially a little argumentative, saying epilepsy could be a sign of possession, but we told him he needed to study his bible better. In the end he was ashamed and preached a sermon about the difference between epilepsy and witches. Our friends understood what he was talking about, but he didn’t actually retract the allegation”.

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AFRUCA says:

“Accusing a child of being having harmful supernatural powers is dehumanising, leading to a process of moral exclusion as the child is henceforth viewed as less than human, evil, a criminal not deserving moral consideration. It opens floodgates to all forms of other abuses including infanticide. The child is, of course, likely to share these beliefs, a horrific experience”.

In 2010, UNICEF carried out a study: Children Accused of Witchcraft, by Aleksandra Cimpric. On pages 48 and 49, two of the key recommendations are:

“Promote legal reform to decriminalize witchcraft, allow for the prosecution of persons harming children and provide special protection to children in contact with the law”,


“Raise awareness and educate legal professionals”.

What has been encouraging is that, as the noble Baroness, Lady Walmsley, reported, a number of African countries have taken the UNICEF report and have made legal provision to protect children. We have not yet done so in this country.

This does not just affect churches, mosques or communities from Africa. Over the past 18 months, I and other noble Lords have heard from members of the Exclusive Brethren, a sect that split from the Plymouth Brethren in the mid-19th century. I have met children and young people who were told that they were evil and tainted and who were shut away from their community until they had “learnt to think right”. One former member told me that anyone who disagrees with the elders is pronounced evil and possessed of the devil. They handle exorcism by dismissing, shunning and excommunicating the child or young person in a practice known as “shutting up”. This group believes that children get evil spirits through contact with the outside world.

I met one young man who had been abused by an adult within his community. He reported the abuse and was then distressed and shocked when he was told immediately to get on his knees and pray for repentance and for the expulsion of the evil spirits. He subsequently left the Exclusive Brethren, but he said that it took him some years to recover from feeling ashamed and responsible for the abuse and to understand that he was not possessed by evil spirits. There is, therefore, a wider application than that commended by AFRUCA.

I reiterate the points made by my noble friend Lady Walmsley. This is not an attempt to curtail beliefs. This is solely about the protection of children, their families and those with whom they come into contact. It is time that the UK caught up with the many African countries that are way ahead of us in legislation.

Baroness Howarth of Breckland: My Lords, I am going to find myself in the difficult position of disagreeing absolutely with the two noble Baronesses. I am surprised that they have not had the context, because much of what I hear sounds like the work that we did two years ago, when I chaired the Trust for London committee that looked at child safety issues in relation to witchcraft and children accused of being possessed by evil spirits. I spent two years working with AFRUCA, the Somali community, the Victoria Climbié Foundation and others looking at the issue. During that time, we managed to disentangle what was at first thought to be an issue of belief but what, as became clear and as the two noble Baronesses made quite clear, was not about belief but about child protection.

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In all the examples I have ever heard, if proper attention had been given to present child protection legal enactments, all those children should have been properly protected by the existing legislation. I agree with the noble Baronesses that if that is not so, we will need something additional—but, as has been said, all the organisations that took part in the round table, except for AFRUCA, did not see the need for a change in legislation. What they saw a need for was the education of social workers who simply do not understand the issue, and for more work to be done with these communities.

5.30 pm

The Trust for London funded all these communities to do work. We undertook a piece of research that looked at how many cases there were, and we could not find many cases. The cases we found were truly horrific; I have met the families and children. I agree absolutely with the noble Baroness, Lady Brinton: it goes to your heart and you want to do everything you can to protect these children. But the real difficulty when it comes to legislation is trying to separate the belief issues from the witchcraft, neglect and abuse that occur in some of these cases.

Protection in Africa is not what has been suggested. The Nigerian legislation has had very little effect. If you talk to any group working out there at the moment, you will hear that children in Nigeria undergo horrific experiences connected to witchcraft of a quite different level from what we have in this country because there are no basic child protection structures in those countries into which the organisations can move and help children get protection.

I am ambivalent. I do not necessarily object to this—I have not really thought it through, I have to say—but I wonder whether having it on the statute book might in fact make it more difficult sometimes because of the belief issue. You have to remember that there are some quite difficult Christian communities—the Plymouth Brethren have just been mentioned—who have very strict beliefs, some of which I would certainly not agree with. However, whether those are outside the law and whether this would catch some of those communities I do not know; I would have to look at it more carefully.

I advise everyone to look at the Trust for London report because it is the most recent piece of work, it was externally evaluated and the cases were externally collected. All the organisations together came to the conclusion that with proper implementation at a local authority level of understanding—which is what we say every time we come to these issues: it is about training, application and action—the present law would catch the worst cases that we hear about. In the examples we heard today, certainly there should have been intervention by the local authority to protect the child.

Baroness Howe of Idlicote (CB): My Lords, I support Amendment 243 because it throws into the ring just how absurd this situation is.

Alas, we all know that this sort of action and reaction exists in this country. Female genital mutilation is exactly the same thing; it is happening, it has been

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happening. We turn a blind eye. We do not want to offend certain organisations and people. We are all against it, of course. The very first Minister I heard who actually understood what was going on completely denounced it, but even that led to no action being taken—you see what we are facing.

What we have heard today should make us stand up and decide in favour of some real action. The amendment has put us on the spot: we should have done so. It certainly should put the Government on the spot, if I may say so, because it is now time for some much more positive action in this respect—and I hope that they will rise to the challenge.

Baroness Lister of Burtersett (Lab): My Lords, I will speak very briefly in support of Amendment 246.

I cannot see any justification for excluding part-time educational institutions. Corporal punishment is corporal punishment; the impact on the child is the same, whether it takes place in a full-time or a part-time educational institution. Therefore, I hope the Minister will support the amendment—or, if not, will explain why.

Lord Storey (LD): I will speak to Amendment 246, which I have also put my name to, and I thank my noble friend Baroness Walmsley for the detailed way in which she spoke to the amendment.

We were probably all watching Children in Need on Saturday. We saw young children in all sorts of situations. The idea that you respond to children who misbehave with corporal punishment beggars belief. I was teaching— in 1987, I think it was—when corporal punishment in schools was abolished. There were all sorts of dire warnings about what would happen. In fact, nothing happened. It made schools focus on proper child behaviour approaches.

I did not know, at that time, that the 1987 legislation did not include part-time institutions. I think that beggars belief. Any hitting of children, any corporal punishment, is child abuse. There is no other way to describe it. Like the noble Baroness, I would be interested to know, when the Minister replies, why we cannot take that next step, to make sure that corporal punishment is banned, outlawed, not allowed, in any establishment, whether part-time or otherwise.

Baroness Benjamin (LD): My Lords, I, too, strongly support the amendments of my noble friend Lady Walmsley.

I will speak first to Amendment 243. For many years I was a school governor. One of my roles was that of child protection officer, for which I had to undergo training provided by the local council. These training sessions were attended by people across the borough, with responsibilities not just in schools but in community centres, Saturday schools and churches. At one such session I realised the worrying extent of superstition in these latter environments, involving children who, it was believed, were possessed by evil spirits.

The protection officers who also attended the training asked for better policies and advice to be put in place in establishments other than schools. They highlighted

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the need for training to protect children from what they believed was serious physical and mental abuse, driven by traditional superstition and sometimes religious beliefs. This abuse punished children who showed strong will or who misbehaved, perhaps because of learning difficulties, or because of conditions such as autism or dyslexia, or undiagnosed conditions which parents and families might not have been aware of or familiar with.

I also support Amendment 246. It has been brought to my attention, for some years now and from people across the country, that many children have had to endure corporal punishment and beatings in part-time educational institutions if they do not remember or learn work set for them, or achieve what is expected of them. This cruelty has to stop. We must not ignore any plea to safeguard all children, no matter where they are, what communities they live in, or where they come from. I therefore wholeheartedly support these amendments and hope that the Minister will put in place measures to protect these unfortunate children who have had to endure such awful and highly illegal abuse and cruelty.

Baroness Northover: My Lords, these amendments both relate to safeguarding specific groups of children. I will turn first to Amendment 243. While of course we believe that people should be free to express their views, I assure my noble friend Lady Walmsley and others that what is absolutely not acceptable is where expression of belief is intended to or causes harm to a child. My noble friends have made very powerful cases. Sometimes children are harmed by their parents or others. As a society we must be satisfied that we have the criminal offences to prosecute those who commit such behaviour. The Government have a key role to play, as do voluntary and other organisations working in the sector. We commend them for their work in shining a spotlight on this problem.

It is essential to raise awareness among the relevant communities and faith groups, and also among social workers and other practitioners—as the noble Baroness, Lady Howarth, said—who may come into contact with families where such accusations have been made. It is only through awareness of the potential threat posed to a child’s well-being by such accusations that families, communities and practitioners can be empowered to prevent harm from taking place and, failing that, to act with confidence in reporting concerns to the relevant authorities.

At this point I would like to look at the criminal law. My noble friend made a powerful case that she thought that these kinds of witchcraft cases were excluded. The noble Baroness, Lady Howarth, said the opposite. We have considered the amendment carefully and we do not believe that it is necessary. We agree with the noble Baroness, Lady Howarth, in this regard. This is quite simply about child protection and human rights. If we cannot include these kinds of cases, what does our child protection mean? Although existing legislation does not specifically mention communication of a belief that a child is possessed by spirits, the current offence of child neglect already includes conduct likely to cause a child unnecessary suffering or injury to health. In addition, conduct not caught by the Section 1 offence could be caught by other offences, depending on the circumstances of the case.

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For example, any person, not just a child’s parents or carers, who caused physical or psychiatric harm to a child—which I think is what my noble friends Lady Walmsley and Lady Brinton are talking about—could be prosecuted for the offence of assault. Similarly, any person whose words or behaviour cause serious alarm or distress to a child, or made the child fear that violence could be used against them, could be prosecuted under Sections 4 or 4A of the Public Order Act 1986 —or, if the behaviour formed part of a course of conduct, it could constitute an offence under the Protection from Harassment Act 1997.

In addition, any person who encourages or assists such conduct could be prosecuted as a secondary participant, or on the basis of an offence under Part 2 of the Serious Crime Act 2007. For example, a religious leader who encourages or assists parents or others to abuse or neglect a child, in the belief that the child is possessed by evil spirits, could be guilty of an offence. We must ensure that our child protection policy is overarching, and includes cases such as these and all other manifestations of child abuse.

5.45 pm

It is important that practitioners are aware of the role that they have to play in safeguarding children. The Government published their Working Together to Safeguard Children guidance earlier this year. This has a statutory underpinning in the Children Act 1989, which provides that if children’s services believe that a child is at risk of harm within the family for any reason, they may intervene in an appropriate way to protect them from such harm. This could be the case where it appears that the child’s parents believe—possibly because of what a religious leader has said—that the child is a witch or possessed, and so are likely to abuse or neglect them for that reason. In such cases, it is vital to identify and assess the risk as early as possible so that the child does not come to harm.

We know that some organisations working in the sector are calling for this sort of specific legislation. We understand why that is the case, given the history. AFRUCA, referred to by my noble friends, is a leading NGO working with families of African origin that has been campaigning for such legislation. However, as I have said, if these issues are identified, there are measures in place to deal with them. It is clear that what we are dealing with here is, above all, lack of awareness. That is why we are taking that work forward with the National Working Group on Child Abuse Linked to Faith or Belief. AFRUCA is a member, along with other voluntary sector and faith organisations, including the Association of Directors of Children’s Services, the London Safeguarding Children Board and the Metropolitan Police. In fact, the group is meeting today.

The view of most members of the group has been that additional legislation is not required to take this work forward and that what is needed is greater awareness. We are beginning to see this. I notice that a statement on the website of the Victoria Climbié Foundation, another of the leading NGOs in the working group, says:

“There is a continuing dialogue within the relevant communities, and the subject of witchcraft is no longer taboo”.

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That represents the beginnings of a move forward. We are funding both AFRUCA and the Victoria Climbié Foundation to work on this and related issues by spending more than £700,000 over the two years from 2013 to 2015. Officials will continue to meet them regularly to discuss progress on these programmes of work.

The noble Baroness, Lady Howarth, made the case clearly that if we single out specific abuses we risk not being as encompassing as our child protection laws should be. However, my noble friends are quite right to highlight these problems because they are a test of whether our child protection measures are working as they should.

I turn to Amendment 246. My noble friend Lady Walmsley has long been a champion for the protection of children from physical abuse and violence, and I pay tribute to her for her work. There was an ongoing debate on this in the previous Government and it continues to be discussed in this one. I reassure noble Lords that the Government are absolutely clear that protection from abuse and neglect is a fundamental right for all children. In recent years there have been cases, well documented by the media, of physical assaults on children in non-school settings. Noble Lords have flagged up a number of areas, including madrassahs. Evidence has been gathered, and individuals have been charged, convicted and imprisoned for physically assaulting children in these settings. I therefore hope that this clarifies that the law already exists to protect children from violence in these settings. Such violence is absolutely unacceptable.

One of the difficulties of enforcing the existing law can be reluctance on the part of parents and others within communities to report allegations or complaints to the relevant authorities. Cultural change is needed to overcome this. Earlier this year, my noble friend Lady Walmsley met the Children’s Minister, Edward Timpson, and suggested that a code of practice would help raise standards in non-school settings. I am pleased to inform the Committee that the Department for Education is working with faith and community organisations to develop a voluntary code of practice. I hope that my noble friend is pleased by that information. Our intention is to help raise standards and establish good practice across the supplementary schools sector.

The code will set out standards that providers will be expected to meet to ensure the effective operation of an out-of-school setting. Signing up to the code will mean that providers establish robust policies in areas such as safeguarding and governance arrangements to help protect children and young people from harm. This will provide parents with the assurance that these settings are providing a good and safe learning environment. Such a code will enable parents to make informed choices about supplementary provision for their children and send a clear message about the expected standards that all settings should meet, as my noble friend Lord Storey said, to keep children safe from violence and abuse. We expect the code to make a real difference, and we will, of course, keep this under review. I am absolutely sure that noble Lords will continue to hold our feet to the fire in all these areas, as they should.

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Lord Storey: I understand the point my noble friend makes about the reluctance of parents to report abuses. Does that not indicate that the law needs to be changed so that corporal punishment is not allowed in any setting? What will happen if certain settings refuse to sign the code of conduct? What sanctions have we got?

Baroness Northover: As I mentioned, this is a voluntary code. We are developing it and taking it forward. I am well aware that my noble friends may feel that that may not immediately go as far as they might wish, but I hope that they will welcome a move in the right direction. Let us see how we can take this forward. We need to make sure that a number of these organisations begin to sign up to this, because that is what will make a difference as they change the way they do things in relation to children in their care. We need to move things forward in a number of different ways. We will keep this under review and see how it is working. No doubt noble Lords will wish to probe to see how it is working out.

Baroness Walmsley: I thank the Minister for her comprehensive reply to all noble Lords who have spoken in the debate. I think we have succeeded in highlighting the issue. On Amendment 243, I particularly thank the noble Baroness, Lady Howarth, and pay tribute to all her work on this subject.

It is quite clear that within the communities that are affected by witch branding, there are differences of opinion about what would and would not be helpful. None of us is saying that working with the communities and making them aware that this is child abuse is a bad thing. Of course it is a good thing. I just do not think it is quite enough for some people.

The noble Baroness, Lady Howarth, talked about the existing law, as did the Minister. She said it is quite enough to catch people who abuse children in this way. What I am talking about is early intervention, if you like. Although once a child is physically abused, all kinds of laws have been broken and people can be charged on that basis, what I would like to get absolutely clear from the Minister is an acceptance that telling a child that they are possessed by evil spirits is child abuse. It causes the child enormous mental trauma, and you just do not know how that will affect them over many years. The Minister said a great deal about that amendment, so I will go away and read Hansard very carefully to try to find out whether there was an acceptance that simply telling a child before you lay a hand on them that they are possessed is child abuse.

The Minister mentioned a number of laws under which somebody might be charged with child abuse for doing that sort of thing, but I wonder how many cases there have been. How many people have actually been charged and imprisoned for that? Do communities and parents really understand that simply telling a child that is enough to qualify as child abuse, and that it should be reported and the child should be given special protection? Will my noble friend write and tell me what sort of guidance there is for social workers on this particular issue?

I thank the noble Baroness, Lady Lister, and my noble friend Lord Storey and others who supported Amendment 246. My difficulty with what the Minister

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said is that you can charge and imprison somebody only when the case is reported. One of the major problems is the reluctance of parents to come forward and tell the authorities that the child is being abused, perhaps particularly if the abuse is happening in a place of faith instruction. The Under-Secretary of State for Children and Families, Edward Timpson, has been very open to discussions with me, as the Minister said. I am quite sure that he, like me, would like to iron out this sort of practice once and for all.

However, a voluntary code of conduct just will not do. Would a code of conduct do in the comprehensive school down the road? Would it do in the primary school round the corner? No, it would not. Parliament said a long time ago that a code of conduct for teachers was not good enough in those settings. I am afraid that it is not good enough in a place of part-time education, either. I shall undoubtedly keep on badgering Ministers about this until the law is implemented. A piece of legislation was passed, but it is no use if it is not implemented. It needs implementing in order to stop this. It is not going to be a magic bullet—I know that. Neither of my amendments would be a magic bullet, but they would contribute towards moving us to a completely different situation.

I will go back to Amendment 243. The noble Baroness, Lady Howarth, talked about Africa. I am not suggesting that, just because a number of African countries have changed the law, things are all wonderful. They absolutely are not; they are horrendous. The fact is that it is very early days in those countries for the laws that have been put in place. When you have a situation where these beliefs and activities are as entrenched as they are in some of these countries—much worse than they are here—it will take years for the change in the law to have any effect. I do not accept that point.

Baroness Howarth of Breckland: That is absolutely right, but it is not the law that will change what is happening; it is having a good childcare structure with basic legislation that protects children, and having people who understand that. That is why I think the law is not particularly helpful in Nigeria; it has been passed because it suits the Government’s purposes—perhaps I can say that here—but it will not protect children. We have a much better framework of protection here. If we have lists of children from different groups, and there are other groups we could name who need specific protection, it will take attention away from the others. We have to train people to look at all these very difficult areas—FGM is there, but it is a different issue and work is being done by the Trust for London on that—and understand the detail and how we train people across the board on these issues. I felt that I should say that I understand the African situation very well indeed.

Baroness Walmsley: I thank the noble Baroness for her additional comments. I am not saying that training is not a good thing; of course it is, but we need something additional. African countries that have changed the law need a much better child protection system—closer to what we have here—but we have a pretty good child protection system and we still have not succeeded in

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protecting these children. We need to make it absolutely clear that this is child abuse, that it comes under the law and that it will not be tolerated. I thank noble Lords for the passionate debate that we have had and beg leave to withdraw my amendment.

Amendment 243 withdrawn.

Amendment 244 not moved.

6 pm

Amendment 245

Moved by Baroness Massey of Darwen

245: After Clause 78, insert the following new Clause—

“Independence of the Children’s Commissioner

In Schedule 1 to the Children Act 2004 (Children’s Commissioner), in paragraph 1 (status) after sub-paragraph (2) insert—

“(3) The Secretary of State shall not undermine the Children’s Commissioner’s independence and shall ensure that the Children’s Commissioner is under as few constraints as reasonably possible in determining—

(a) the Commissioner’s activities,

(b) the Commissioner’s timetables, and

(c) the Commissioner’s priorities.””

Baroness Massey of Darwen: My Lords, in moving Amendment 245, I will speak to Amendments 257 and 260 in this group and kick off what I think will be a useful discussion on the new arrangements for the Children’s Commissioner for England. I am sure that the amendments in the names of my noble friends Lady Hughes and Lady Jones and of other noble Lords will give rise to a pithy debate on this important issue.

The reforms to the role of the Children’s Commissioner for England have been welcomed by the Alliance for Reform of the Children’s Commissioner, which includes a number of significant children’s organisations. I am grateful to the department for the helpful note that we received on the Children’s Commissioner last week. I am not sure that it resolves all the issues, but hopefully we will have a useful discussion that will enable us to think through more of those issues.

As many noble Lords know, it was something of a struggle to get the then Government to agree to England having a Children’s Commissioner. Some people in this Room were instrumental in lobbying for the appointment and then contributed to the review of the Office of the Children’s Commissioner carried out by John Dunford in 2010. The review culminated in his report and recommendations, published in November of that year. One key recommendation—perhaps the key recommendation—was that there should be a focus on children’s rights in the work of the Children’s Commissioner. As a result, the new commissioner will take over the joint responsibilities of the Children’s Rights Director and the Children’s Commissioner.

The Bill can strengthen children’s rights generally. We have had, and will have in the future, debates on children’s rights in a variety of contexts. The Bill should reflect the Written Ministerial Statement of 6 December 2010, which made the commitment that the Government would give “due consideration” to the Convention on the Rights of the Child when

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proposing new law and policy. We still have a way to go with that. Many of John Dunford’s recommendations cannot be implemented without looking beyond the role, function and powers of the Children’s Commissioner and placing duties on public authorities and on Ministers. We will discuss that in later amendments.

The Children’s Commissioner will be a key force in safeguarding the rights and welfare of children and it is important that we get it right. There are three main issues: the appointment of the commissioner; the independence of the commissioner; and the promotion of children’s rights. The appointment of the Children’s Commissioner must be open, transparent and non-political in order for the commissioner to be sufficiently independent to champion children’s rights and to have credibility. The Children’s Commissioner is appointed by the Secretary of State but, as I understand it, is listed in the code of practice of the Commissioner for Public Appointments, so Parliament is involved in a pre-hearing process. However, the UN accreditation committee recommends that the involvement of Parliaments is provided for on the face of legislation rather than just being a political commitment. In Scotland and the Republic of Ireland, it is the national Parliament that appoints the commissioner. The degree of independence is critical in determining the success of this role. The new commissioner must be under as few constraints as possible in determining his or her activities, timetables and priorities. My amendments would see a clear legislative statement on such independence, which would bind future Governments.

In another place, MPs considered an amendment to require the Secretary of State not to interfere with the work of the Children’s Commissioner. The Government responded that the legislation already repeals provisions that currently allow the Secretary of State to direct the commissioner’s work, but that does not go as far as an explicit prohibition on interference. The Minister in another place cited the Equality and Human Rights Commission as an example of a body that is able to act independently. The legislation that set up the EHRC has similar provisions to those in my amendment. I welcome assurances that the Government will not interfere with decisions on priorities for the work of the commissioner, but such an assurance does not bind future Governments as a clear legislative statement would. The UN Committee on the Rights of the Child has made it clear that national human rights institutions for children should meet these standards.

The Minister may respond that the commissioner will have full membership of the European Network of Ombudspeople for Children. This is welcome, but it is not enough. The Children’s Commissioner should satisfy the Paris principles to the standard that the Children’s Commissioner should have the status of a national human rights institution.

Amendment 257 sets out criteria for the appointment of the Children’s Commissioner for England, stating that he or she must have adequate knowledge and experience in all matters regarding children, must involve children in decision-making and must be able to act independently of government. I am aware that this issue was discussed in another place and that the Minister stated that it would be desirable to draft the

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person specification at the time of appointment. That is fine so far as it goes, but setting out in legislation some objective minimum standards would be preferable to ensure that the person has the right skills and experience.

In another place, an amendment required the Secretary of State to have regard to the views of Parliament and others in appointing the Children’s Commissioner. The Minister circulated a note to the Public Bill Committee that set out how the appointment process would work. The Government indicated that it would not be convention to set out in legislation that Parliament should consider a particular matter. Amendment 260 would place a duty on the Secretary of State to have due regard to the views of any parliamentary committee that has published a view on a proposed appointment or removal from office of a Children’s Commissioner.

All these amendments would support the important principle that the Children’s Commissioner must be independent of government and must be well experienced in matters regarding the rights of the child. Who will be on the panel that interviews candidates and what are likely to be the selection criteria? I am not looking for an answer now, but I am interested. We in this House and children’s organisations will be watching the process with interest and concern. I beg to move.

Baroness Lister of Burtersett: My Lords, I rise to speak to Amendment 262, which has my name on it. I am speaking on behalf of the noble Lord, Lord Lester of Herne Hill, who is very sorry that he is unable to be here.

I want to make a point about independence in support, in particular, of my noble friend’s Amendment 245. At Second Reading, many noble Lords raised concerns about the Office of the Children’s Commissioner for England receiving sufficient funding from government to carry out its functions effectively. The Minister subsequently wrote to noble Lords acknowledging the need for sufficient resources to give effect to the reformed office’s work. He went on to say that decisions involving funding will always need to be taken in the context of the prevailing economic circumstances and competing priorities for public funding. That is understood but, whatever the economic circumstances, such decisions must not compromise the independence of the commissioner that my noble friend talked about or his ability effectively to carry out his work.

Legislation should therefore set out appropriate safeguards, such as those contained in Amendment 262. There is a danger that, unless properly resourced, the changes proposed in the draft legislation will raise expectations about the commissioner’s potential impact that the office simply cannot meet. The adequacy of the budget will determine whether the commissioner is able effectively to promote and protect children’s rights. According to the UN Committee on the Rights of the Child, it is the duty of states to make reasonable financial provision for the operation of national human rights institutions in the light of Article 4 of the convention. The mandating powers of national institutions may be meaningless or the exercise of their powers limited if the national institution does not have the means to operate effectively to discharge its powers.

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The Paris principles, mentioned by my noble friend, also underline the importance of ensuring that national human rights institutions have access to adequate resources. They state:

“The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding … in order to be independent of the Government and not be subject to financial control which might affect its independence”.

The Dunford review drew attention to the fact that the Children’s Commissioner had a low budget compared to children’s national human rights institutions in other jurisdictions. At the time of the review, this country was spending 24p per child on the Children’s Commissioner compared to, for example, £1.89 in Ireland —hardly a richer country than this one—£1.27 in New Zealand and £3.74 in Northern Ireland. UNICEF undertook a global study of independent human rights institutions for children. It underlined that independence is the defining feature of such institutions and that sufficient and sustained financial resources are key to that independence.

On the issue of independence, I wish to raise another matter, which has been of concern to the Joint Committee on Human Rights, of which I am a member. In its report on the draft clauses preceding the Bill, the JCHR accepted the need for financial control of and public accountability for the public money spent by the Children’s Commissioner but was concerned about whether the degree of financial control exerted by the Government through the standard NDPB framework agreement was compatible with the requirement in the Paris principles that national human rights institutions should not be subject to financial control that might affect their independence. It therefore called, in December 2012, for the proposed new framework agreement between the OCC and DfE to be made available in draft as soon as possible so that it could be scrutinised for compatibility with the Paris principles requirement of effective independence from executive control.

The Government in their response promised to review the framework agreement in light of the committee’s comments and to make a copy of the revised document available for scrutiny. No new framework agreement had been published by the time the Bill was introduced, however. In the JCHR’s report on the Bill in June this year, it recommended that all the changes that had been made to the framework agreement between the Equality and Human Rights Commission and DCMS in order to safeguard the EHRC’s accreditation as an “A” status national human rights institution should also be made to the Children’s Commissioner’s framework agreement and it again asked for the revised framework agreement to be made available for scrutiny before the Bill reached Committee in the Lords.

With Committee stage fast approaching, but still no revised framework agreement published, the JCHR wrote again to the Minister on 30 October, asking the Government to make every effort to arrive at a revised agreement with the Children’s Commissioner and to make it available to Parliament before today’s debate on the proposed amendments to the Bill concerning the commissioner’s independence. Notwithstanding that request—or requests, in the plural—the Government have still not published a revised agreement. Towards

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the end of last week, they published and circulated a note summarising the main changes that will need to be made to the framework agreement when the Bill comes into force. These include a number of exemptions from efficiency controls that have been made in the EHRC’s revised framework agreement, which the Government say that they will “seek to replicate” in the Children’s Commissioner’s framework agreement.

The Government’s stated willingness to replicate the changes made to the EHRC’s framework agreement is welcome, but it is most regrettable that the revised agreement itself is still not available. As so often, the devil is in the detail. It will not be possible for Parliament to be sure that the framework agreement is compatible with the Paris principles until it has seen the text. It is not clear, for example, how the requirement of government approval of the commissioner’s marketing and advertising plan is compatible with independence when, as I understand it, efficiency controls, which must be satisfied for the plan to be approved, require such expenditure to be essential for the Government’s objectives, not the commissioner’s.

The same issue was resolved with the EHRC. I hope that it can be so with the Office of the Children’s Commissioner. Will the Minister give noble Lords his reassurance that he will discuss the detail of the framework agreement with the Office of the Children’s Commissioner as soon as possible and make a draft of the revised agreement available before Report, so that noble Lords can be satisfied on this crucial question of independence from inappropriate executive control?

6.15 pm

Lord Ramsbotham (CB): My Lords, I support Amendment 245 in particular. In doing so, I hope that the Committee will allow me to reflect on the comparisons between the commissioner and my own former position as Her Majesty’s Chief Inspector of Prisons.

Unlike the other inspectors of public sector organisations, the Chief Inspector of Prisons deliberately does not come from that service, in order to ensure complete objectivity and independence. The Chief Inspector of Constabulary is a policeman; the Chief Inspector of Probation has been a probation person, and so on. What was also interesting was that I was a Crown servant, not a civil servant, which gave me another degree of independence. I would like to see the Children’s Commissioner given exactly the same status in order to emphasise that point. It does not in any way lessen your responsibilities and it certainly does not lessen your access.

It is also important to realise that, again in parallel with the Chief Inspector of Prisons, you are the quality assurer. You are there to assure the quality of the delivery of children’s rights in this particular case. Quality assurance carries with it a certain amount of responsibility but it also carries a requirement to have sufficient resources to be able to do that. I have to say that, after talking to the Children’s Commissioner and looking at her responsibilities, I do not think that she is adequately resourced to be able to carry out effectively the role of quality assurer of children’s rights.