Girls’ Education Challenge
Baroness Howarth of Breckland Excerpts(10 years, 3 months ago)
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Baroness Northover
When troops are drawn back from Afghanistan, as my noble friend will know, DfID’s commitment will be maintained because we are well aware that a more peaceful future is likely to be secured through the development of Afghanistan. Engaging girls and women is absolutely vital to that, and education is all part of it.
Baroness Howarth of Breckland (CB)
My Lords, education for disabled young people is even more difficult in areas of extreme poverty. Is there any focus in this programme on disabled girls? I declare an interest as a trustee of Livability, which works in Asia with disabled young girls.
Baroness Northover
The noble Baroness may like to know that my honourable friend Lynne Featherstone has a particular focus on assisting those with disabilities in developing countries. The projects being taken forward at the moment are in Somalia, Ethiopia, Kenya, Uganda, Afghanistan and Sierra Leone. There is great determination to make sure that schooling is inclusive, whether it is for able-bodied or disabled children.
Children and Families Bill
Baroness Howarth of Breckland Excerpts(10 years, 5 months ago)
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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 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 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.
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 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.
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”.
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”,
and:
“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.
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.
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 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 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.
Children and Families Bill
Baroness Howarth of Breckland Excerpts(10 years, 6 months ago)
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Baroness Wilkins (Lab)
My Lords, I shall speak to Amendment 104, which returns to the issue of funding. The amendment would require local authorities to include information about funding for SEN provision within their local offers.
I set out at the last meeting of the Grand Committee the concerns of the National Deaf Children’s Society, RNIB, Sense and many other charities that local authority spending cuts will fatally undermine this Bill. In her reply the Minister undertook to propose to her “far more significant” noble friend that their department might discuss this matter with the organisations concerned. I look forward to hearing whether any progress has been made.
In her reply to me in Grand Committee, at column GC 545, the Minister assured me that the Government were not cutting services for deaf children and set out the funding situation. However, we know from the National Deaf Children’s Society Stolen Futures report that many local authorities are already cutting support services for children with SEN. The society found that 29% of local authorities will be cutting specialist support services for deaf children this year.
The Government have argued that the Bill will improve transparency and accountability and that it is this which will enable parents to ensure that their local authority provides the services that their children need. However, on looking at the Bill and at the draft regulations and guidance underpinning it, nothing that I can see would require local authorities to be more transparent about the funding. If the local offer is intended to bring together all the relevant information about SEN provision in one place, in a way that is easy to understand, accessible and improves accountability, surely it must include information about funding. Without that parents will be powerless.
The local offer must give parents clear information about how much funding has been allocated by the authority to support children and young people with SEN; it must allow and empower parents to compare local authority spending; and it must allow parents to identify if cuts have been made from year to year. There is a clear need for transparency. The National Deaf Children’s Society had great difficulties in extracting reliable information about funding of specialist support services for deaf children from the local authorities.
In 2012, 49 local authorities—nearly a third—did not respond to freedom of information requests on budgets for deaf children’s services within the legal deadline. One local authority did not respond until six months later, and only after the Information Commissioner’s Office intervened. Its response confirmed a cut to the education service for deaf children. However, as this was not disclosed until so long afterwards, parents were denied any opportunity to legally challenge this decision before it had been implemented.
This is the battle that the parents and charities must face. If the Government were to accept this amendment and require local authorities to publish information about funding in the local offer in an easy and accessible way, it would certainly give parents and charities real leverage to get the services that they need.
Baroness Howarth of Breckland (CB)
My Lords, I support the noble Baroness, Lady Wilkins. At the end of the last debate that we had on this Bill, I asked the Minister to explain how the extra funding that would be made available actually would reach those who needed it. She said that she would write to me. I do not know if I have missed that letter or whether there has not yet been time to produce it; however, I look forward to it.
I think that it is quite complicated, but I want to ask for something in relation to the way that local authorities are struggling to meet their commitments at present. I think that I said then that it is far easier if parents understand what is and is not available and are not misled into thinking that they can have more than is possible, rather than having massive aspirations. Of course I wish that the local authorities had funding to meet every child’s needs, but if that is not possible I think that it needs to be clear.
I move on to my Amendment 107, which is grouped curiously with this amendment. It would be far simpler for the Government to accept and implement. It relates to personal budgets. On page 25, line 2, I would like to insert,
“arrangements to assist young people and parents in managing a personal budget should they choose one”.
Personal budgets have been a great liberator for many adults and families, but for others they have caused extraordinary difficulty. Those of us who work in both the adult and children’s fields have seen in the adult field how many people have found extraordinary problems in managing employment and the financial complexities of budgets. Families are making it clear that they require support to manage personal budgets, and parents with experience of direct payments have spoken of difficulties that they have had in finding, recruiting and CRB-checking good staff, managing money and transactions with the local authority, identifying quality services to purchase, and co-ordinating a package of care. Currently, only 25% of local authorities provide key workers to help manage payments. I find that extraordinary. This leaves families to manage the often burdensome responsibilities of direct payments alone. I hope that discussion around this amendment will help us to better understand the Government’s thinking about the support that they envisage local authorities will provide for those families who opt for personal budgets. Does the Minister accept that all families should have some access to support?
I have a quick case study. As you know, on the whole I do not go in for detailed anecdotes, but I think that this story really does illustrate the issue. Oscar lives in north London with his parents and two siblings. He is about to turn 18. He has autism and learning difficulties. His parents have been receiving direct payments to pay for respite care for the last eight years. His mother explains how difficult it can be to find the right support to buy with direct payments, and to “jump through hoops” to account for them:
“16 months ago our local council agreed to pay for one weekend’s respite care each month, but it has taken a considerable amount of time to agree how to provide this. It has only been in the last two months that we’ve actually been able to use the direct payments to get the support we need.
As Oscar was approaching adulthood, it seemed appropriate for us to try to find him a residential placement for his respite breaks. We hoped that this would help equip him with additional independence skills and that he would enjoy spending time in a new environment. However, when we visited local options it was clear that they were not able to meet Oscar’s complex needs. We decided that the weekend respite would have to take place in our home.
Oscar needs two-to-one support and in a house with two other children this is a challenge to accommodate.
Having two extra adults in our home for a whole weekend has a significant impact on all of us and is confusing for Oscar who wants to spend time with us. But it’s not only space that is the issue. Knowing where to find suitable staff who are equipped to support Oscar has always been difficult, and to cover a whole weekend at least four staff are needed.
I had asked the Council for a list of local carers which they said they would provide, but this never arrived. It is a huge and stressful burden for parents, who already have more than enough to cope with, to have to recruit, interview and train up staff themselves. We are always vulnerable to staff leaving after a few months for better paid work, leaving Oscar very unsettled and us totally unsupported.
For many years I didn’t know who to talk to at the Council about any aspect of this as Oscar didn’t have a named social worker and no one would return my calls. As Oscar is now approaching his 18th birthday, he has now been allocated a social worker and this has made a big difference. However, for many years we felt we were floundering on our own, receiving the occasional official letter threatening action because of some perceived fault on our part.
The Council have now agreed to employ Dimensions, a not-for-profit organisation who specialise in providing services for people with learning difficulties and autism. Together we are now trying to recruit and train a team of four so that we will always have support, even if staff are ill or on holiday”.
Baroness Eaton (Con)
My Lords, I seem to be a lone voice in the Committee today as I support Clause 30 in its current form. We should resist making any further amendment to the clause that would make the measures more prescriptive than they are already. To do so would needlessly hinder local provision for local issues that are not foreseeable from a national point of view. I therefore cannot support Amendment 118 and the others in the group which seek to introduce minimum standards for the local offer.
It is of concern to me that by introducing central prescription we would reduce the flexibility of local authorities to allow for local solutions. Government departments are unable to see the detail that is based on the daily contact and conversations with parents and young people and are unable to respond to individual and local needs. They cannot do that in the way that a local authority can. With a variance in funding for education, including SEN provision, across the nation’s local authorities such prescriptive measures could damage in a very real way the ability of local government to cater for the needs of local residents.
SEN provision varies between local authorities due to the nature and size of the local population, with greater needs for levels of service in some areas and much less requirement in others. By allowing local authorities to control their own provision, which these amendments would restrict, those authorities will be better able to provide those required specialist services. I always think of the example of a child with severe autism, who may require ballet lessons which would not be part of an offer. If a local authority is stretched to provide financial support for the things that it has to do, this removes its flexibility to deal with individuals on the basis of their need.
A serious concern regarding these amendments is that they would place duties on local authorities to secure a minimum level of health provision, when the body responsible for this is not the local authority but the National Health Service. It is entirely understandable that local authorities should be very wary of being responsible for provision over which they have no direct control. I agree with the references made earlier to the Minister’s view that too much prescription can severely limit flexibility and innovation in service provision.
We often heard negative comments today about local authorities’ provision. There is of course always room for improvement but with so many good quality provisions being made and so much work going on with parents and children in local authorities, our view should be that the aim of local authorities in this area is to provide a good service. We should not set expectations at a level that just will not be available but allow flexibility, and allow local authorities to create the right services for the people in their locality.
Baroness Howarth of Breckland
My Lords, the noble Baroness, Lady Eaton, is not alone in having some reservations about setting minimum standards as they may well stifle innovation and individual programmes. Perhaps more thought could be given between now and Report to how we ensure that local authorities provide a range of services. I know that the code says quite a lot about this. My great worry is that if you do not have something which can be inspected and monitored, and an expectation of a range of services, some local authorities might end up with very little indeed in their local offer—and it will be a postcode lottery. There is a real dilemma in how you maintain that flexibility yet ensure that families have something they can turn to which is monitored by either Ofsted or the Care Quality Commission. It would be quite useful to give some thought to this between now and Report so that we can come up with a better solution than a rigid framework, but with something ensuring that the services are there.
Baroness Wilkins
My Lords, belatedly, I will speak to Amendment 118 and in support of Amendments 112, 113 and 114. I will be brief because most of what I was to say has been said. The aim of Amendment 118 is to improve accountability around the local offer by requiring local authorities to meet basic expectations around provision for children with special educational needs. This issue is particularly acute, as we have heard, for children with low incidence special educational needs because local authorities are often ignorant of the support that these children need.
A number of organisations, including the National Deaf Children’s Society, the RNIB and Sense, are concerned that the Bill is extremely weak on overall accountability, particularly on the local offer, with a system that relies solely on the parents of children with sensory impairments—many of whom are, as we have heard, busy being parents. A system that relies on them policing it across all 152 local authorities is not likely to deliver the significant change that many of these children need here and now. Other noble Lords have also spoken on the need for increased accountability.
Children and Families Bill
Baroness Howarth of Breckland Excerpts(10 years, 6 months ago)
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Lord Touhig (Lab)
My Lords, I entirely endorse the arguments advanced by my noble friend Lady Jones of Whitchurch on Amendment 73. I spoke about this at Second Reading and argued then that the Bill must protect existing rights for parents and young people and not diminish them. I think we all agree on that. At present, parents rely on their right to appeal statements at a tribunal. However, if my understanding is correct, under the new system that the Bill will introduce, only provision which is deemed to be,
“wholly or mainly for the purposes of education”,
can be appealed in this way. This raises the threshold, as my noble friend Lady Jones said, and it restricts the ability of parents to uphold their rights and support the needs of their children. The removal of the three words “wholly or mainly” is, I think, absolutely necessary.
My noble friend referred to the letter that the Minister sent to all noble Lords following the Second Reading debate. She mentioned that he said that the Government would be looking at ways to address this matter. He also explained—and this gave me some hope—why Clause 21(5) was included in the Bill, but he added:
“As there is now a duty on health commissioning bodies to secure the health care provision in a Plan, this clause is no longer necessary to ensure that the child or young person receives the health care provision specified in the Plan.
However, retaining the clause does enable young people and parents to appeal to the tribunal in respect of health care provision where it is defined as special educational provision in accordance with the clause—as now”,
a point just made. We now need some clarity from the Government about precisely what they want to do about this part of the Bill.
Baroness Howarth of Breckland (CB)
My Lords, I declare an interest as the president of Livability, which is an organisation that cares for people with complex needs. I am very concerned about this issue because we have two colleges for young people aged 16-plus where their social and educational needs are met together. Sometimes it is quite difficult to differentiate between the two, as we found during Ofsted inspections. If young people have extremely serious difficulties that need perpetual health provision and you are trying to help those young people to learn skills—the sort of skills whereby they can sit and pick up a cup instead of screaming all day, which is how they are when they arrive—it can sometimes be difficult to differentiate between education, social care and health provision. I am simply asking that nothing in the Bill should make that even more difficult. Usually we have difficulty getting payment for the social element of these colleges, but recently we have found ourselves being given the social element without the educational element of the colleges. Some really difficult issues are emerging and I should like to stop them before they develop. I should be delighted if the noble Lord, Lord Nash, would one day visit Nash College.
Lord Addington (LD)
My Lords, can my noble friend give us some idea about how the Government will remove those things that are not for educational purposes in the case of a young person with complex needs or a problem that prevents them accessing the process of education? That seems to be what the noble Lord, Lord Ramsbotham, started with. Getting some clarification now about how that process will take place will be of help. If we have a system in place that gives some degree of confidence, I think that we can probably move on from this. If not, it will be a real problem.
Baroness Northover
My Lords, this group of amendments relates to Clauses 25 and 26, which deal with promoting integration and joint commissioning. These provisions are at the centre of our reforms and I am grateful to noble Lords for their careful consideration of these issues. Children and young people with special educational needs need integrated services. Too often they have to tell their story over and again, and too often they or their parents struggle to navigate a system that makes no sense either to them or to the professionals who are supposed to be helping them. In this mini-debate we have had an echo of the discussions we had on both the Health Bill and the Care Bill, where noble Lords were very keen, as were the Government, to take forward better integration and working together across these areas. Noble Lords who have just come from the Care Bill will be extremely well aware of how the Government have sought to take this forward, addressing how people have so often fallen between the cracks. This, too, is part of the attempt to ensure that those with special educational needs are better supported and that the authorities responsible for them work more closely together.
These clauses seek to tackle those issues head on. The integration duty sits alongside duties for a local authority and its local partners to co-operate with each other. I remember extremely clearly, as other noble Lords no doubt will, how integration, as debated in the Health Bill, had to be part of the new arrangements for the health service. This echoes much of that. It links closely to the joint commissioning clause that provides the statutory framework to enable partners to work together effectively to deliver a better experience for the child or young person and their families, and support improved outcomes. Joint commissioning sets out the framework for key elements, such as the local offer, education, health and care plan assessments, and personal budgets. It seeks to improve both the working relationships between local authorities and health bodies, and the provision to children and young people with special educational needs. It requires the local authority and health bodies to establish clear procedures for making decisions and, in particular, to agree what support is needed locally and which agency will deliver it. Crucially, they must agree how they will resolve disputes between partners, as well as how they will deal collectively with complaints concerning education, health and care provision.
The new draft SEN code of practice’s chapter on joint commissioning has developed a great deal, and I hope it may help to reassure noble Lords to know that it puts great store on the importance of making decisions in joint commissioning arrangements—an issue to which the noble Lord, Lord Ramsbotham, has just referred. It specifies that the arrangements should be robust enough to ensure that all partners are clear about who is responsible for what, who the decision-makers are across education, health and care and how partners will hold each other to account where there is a dispute. It recognises the importance of getting elected members and chief executives across education, health and social care on board, and recommends that the arrangements for children and young people with SEN should be specifically accountable to councillors and senior commissioners. It recognises that local accountability can take the form of a programme board, acting as a bridge between the local authority’s education and social care leadership and health partners.
It also reflects that health bodies must work with the local authority in commissioning integrated, personalised services and designing the local offer, including ensuring that relevant contracts with providers reflect the needs of the local population. Local authorities, clinical commissioning groups and NHS England should develop effective ways of harnessing the views of their local communities so that commissioning decisions on services for those with SEN are shaped by people’s experiences and aspirations. The dovetailing of the SEN reform clauses with the NHS reforms is central. The NHS mandate requires clinical commissioning groups to consider the needs of children and young people with SEN and disabilities, so we see immediately the crossover. The Health and Social Care Act reforms require local authorities and clinical commissioning groups to participate in the health and well-being board and to produce a joint strategic needs assessment and a joint health and well-being strategy that sets out how local needs will be met. So the needs are to be identified, and plans have to be put in place as to how they are met.
The health and well-being board has a duty—and I well remember it—to encourage integrated working. For the purpose of advancing the health and well-being of the people in its area, it must encourage people who arrange for the provision of health or social care services in the area to work in an integrated manner. As I said, the Care Bill has been taking that further forward and making it a reality. I hope that that context helps when looking at how we are trying to tackle the needs of these particularly vulnerable children.
I heard what my noble friend Lady Sharp said about the probing nature of her amendment. As ever, she probes extremely effectively. She is seeking to explore how these new arrangements will work in practice, and obviously she is absolutely right to do that.
My noble friend wondered whether SENCOs would have too much on their plate. Since 2009, the Government have funded more than 10,000 new SENCOs to study for the National Award for SEN Coordination. We will support a further 800 places in 2013-14 and this will help them in their important role in linking with other agencies, such as health and social care. I hope that that helps to take this matter forward.
Many of the amendments in this group reflect an apparent desire to puts lots of detail in the Bill. This is an argument with which everyone here will be very familiar—whether it is necessary to specify certain things in the Bill in order to make sure that certain things happen. I am sure that we are all seeking to go in the same direction, which is to achieve what the Bill sets out to do. From noble Lords’ probing as to whether it is going to be delivered by the Bill as it is, I certainly sense that there is agreement on that.
However, noble Lords will also be familiar with the fact that if you specify in great detail in a Bill, you can inadvertently exclude things that you have not included. That is why there is always discussion about what happens in guidance and secondary legislation and so on, and that is why I am so pleased that we have the SEN guidance. It is comprehensive and, I hope, addresses a number of issues that noble Lords are concerned about. From that guidance, your Lordships can see how the Bill translates into what we intend in practice.
As noble Lords will appreciate, we feel that there is a danger that if too much is specified in the Bill, that will then hinder the kind of flexibility that may also be required at a local level. Noble Lords who heard the pathfinder organisations, which came to address us the other day, probably share my feeling that the often very imaginative and creative ways in which they were going about their work and the way they were working with other organisations in their local areas to address the needs of the children were very impressive. One would not wish to do anything that stifled that. One would wish to support them in taking that forward. The aims of what one is seeking to achieve and the details being spelt out in the guidance—
Baroness Howarth of Breckland
I have not spoken in this debate but I should like to ask the noble Baroness a question. The thing that concerns me greatly as a practitioner is the variableness of how co-operation takes place across the country. In some places, certainly where there are special projects such as pathfinders, it works well, but in my experience some authorities do not make timely decisions, which can mean that placements are not agreed, and again I refer to my experience in adult colleges for severely disabled young people. If a local authority cannot agree between its own social services provision and its education provision, how does it then hope to get co-ordination across the piece?
I probe only because of my anxiety that we get this right. I agree that it is not always good to have too much detail in a Bill, but how through the guidance will we ensure consistency across the country so that decisions are made appropriately and young people get properly placed, not left in back rooms in homes with distraught parents when a college place could make the difference?
Baroness Howarth of Breckland
My Lords, I find the speeches of the noble Baroness, Lady Wilkins, a breath of fresh air. Often, sitting in these debates, I feel that I am in a time warp bubble where we have high hopes and expectations for the future. The word “hope” was used earlier by the noble Baroness, Lady Sharp, and I think I muttered to the noble Baroness, Lady Howe, “Is hope enough to achieve what we want?”. I ask the Minister to be realistic in her response. We are raising the expectations and hopes of hundreds of families. Day in and day out, I see families struggling to get services that they simply cannot access or which do not exist, and being persuaded to accept something else because what they feel they need is not available.
I welcome the Bill enormously. As I have said before, I think that at its heart is a real care for that group of families, but I am immensely concerned about what happens when it goes through. I speak also as a vice-president of the Local Government Association and work often with local authorities and their leaders. I know the struggle that they are having with government finances to make those services work. I ask the noble Baroness how we move towards achieving those services, and that level of services, while keeping a realistic picture, so that families do not expect more than they can hope for, but somehow ease the system so that, as the noble Lord, Lord Low, said, they are not engaged in a huge antagonistic battle day in and day out to move just a step forward. If only we could make some of it easier and clearer so that they knew what they could expect, that would be of huge benefit.
I am sorry if I sound slightly sour in saying all of that, but the noble Baroness, Lady Wilkins, presented us with the reality as it is, and as many of us see it on the ground, day by day. I think that I have said enough to make my point. I care about the families; I care that they do not have unrealistic hopes. I just want them to be able to get what is intended by the Bill.
Baroness Howe of Idlicote
My Lords, I am happy to support the amendment of my noble friend Lord Low to strengthen the accountability measures around the local offer. I hope that all the comments that have been made will strengthen the arm of the Government in making certain that they are delivered.
For far too many families the process of accessing support for their disabled child or child with special educational needs involves them navigating their way around a complex, inflexible system which is still steeped in bureaucracy. All too often parents feel that they have to be persistent and tireless if they are to get the services they need, with only articulate families or those who shout the loudest—in essence, probably, more middle-class families—being listened to. Therefore, accountability around the local offer for services, on which almost 1.4 million children will be reliant, must be as robust as possible so that families can ensure that the services they need are available in their local area.
This is something that the Education Select Committee emphasised in its pre-legislative scrutiny of the SEN reforms, stating:
“The importance of getting the Local Offer right cannot be overstated”,
and recommending that the Bill must contain improved accountability measures by which offers can be evaluated. The amendment of my noble friend Lord Low would create a situation where local authorities would have to work closely together with families, as well as with school governors, children’s centres and nurseries, with the common aim of making local support for disabled children and children with SEN the best that it can be.
In these difficult financial times, when every penny counts, ensuring that children with SEN are given timely and effective support in their local communities will certainly prevent families reaching crisis point, where they need more expensive support further down the line as a result. We should not underestimate the importance of this partnership working. Too often parents feel powerless and that their needs are not being listened to. As a consequence they are forced to fight for a statement of special educational needs or to go to a tribunal to get the right support for their child. This is, and remains an unacceptable situation. It wastes time, money, resources and can be emotionally draining for parents who already face immense challenges on a day-to-day basis. Indeed, I echo the chair of the Education Select Committee, the Member for Beverley and Holderness, who stated at the Report stage of the Bill in the other place that he hoped there would be fewer people having education, health and care plans than under statements,
“because local offers meet so many of the needs of parents and young people”.—[Official Report, Commons, 11/6/13; col. 205.]
The local offer has the potential to be truly transformative in improving the lives of families with disabled children, ensuring that services are designed by families for families. However, I am not confident that the current provisions in the Bill will guarantee this. I will listen with enthusiasm to any reassurance I can get. I further urge the Government to accept the amendment of my noble friend Lord Low, which would prioritise the needs of families and ultimately lead to better life outcomes for 1.4 million children.
Baroness Howarth of Breckland
May I just ask a question about the funding? Much as local authorities do not like ring-fencing, how will the Government ensure that that funding is properly directed to these services?
Baroness Northover
The issue of exactly how to make this as effective as possible is under discussion at the moment, and I am very happy to write to the noble Baroness to spell that out in more detail.
Children and Families Bill
Baroness Howarth of Breckland Excerpts(10 years, 6 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“Privately fostered children
In section 66 of the Children Act 1989 (privately fostered children), at the end of subsection (1) insert—“(c) the relative exemption does not apply for foreign national children whose parents are not residing in England or Wales”.”
Baroness Howarth of Breckland (CB)
My Lords, Amendment 43 concerns another very specific group of children—those who are privately fostered but who come from overseas. In some ways, this is a probing amendment to see whether the Government can revisit the regulations around these privately fostered children.
Currently, the number of children in this group in the UK is unknown. The majority will have arrived on visitor visas and will have overstayed. Most will be attending school and will be registered with health services. The adults caring for them have a duty to notify their local authority that they are caring for the child but, as the child is a visa-overstayer, no one does it. Given their other pressures, the majority of local authorities do not proactively look for these children, and schools do not check the visa status of children arriving mid-year or joining in years two to six.
The close relative exemption includes all relatives described under the Children Act 1989 and it exempts them from assessment by the local authority. The issue is that all carers claim to be an aunt or uncle. That is impossible to verify in most cases, and local authorities accept this as it reduces their workload. We should keep in our hearts Victoria Climbié as we think about this issue because that case, too, involved direct relatives.
The child protection issue is fairly straightforward. These children are in the UK without anyone who has legal parental responsibility. No one has overseen their placements and no one has asked about the child’s wishes or feelings. The real crunch comes when these children reach 18, having been brought up here from childhood and English being their one language. They are probably on their way to further education. One young person for whom I was asked to advocate by Voice was in this exact position. Only when preparing to go to college did he find out that he was facing the alternative: deportation as an illegal immigrant. There is a range of these children. It is in their best interests to know their immigration status and to determine their future as soon as it is known, rather than when they reach 18. The organisation Children and Families Across Borders believes that the Home Office will accept this amendment.
There are real practice issues. We have spoken often about practice and its difficulties but in this matter, while the border agency and the children’s services are both governmental agencies and should be working together, the organisation has found that there tends to be little if any exchange between the two at either policy or working level. There seems to be no sense of corporate responsibility within government for the children who have reached British soil. The children’s services focus on the children’s well-being and rarely take the step needed to address durable, long-term solutions. They look at it in the narrow context of pathway planning, which is good for other children who are from this country.
Baroness Northover
My Lords, here we are addressing another group of potentially vulnerable children, as the noble Baroness, Lady Howarth, pointed out. They are foreign-national children who are living in this country while their parents reside elsewhere. We recognise that the amendment seeks to improve safeguards for children privately fostered from abroad. We sympathise with that intention.
We fully accept that local authorities should check on private fostering arrangements when children are living apart from their close family, and current legislation provides for this. We recognise that it is sometimes difficult to establish if a family relationship is genuine, as the noble Baroness, Lady Howarth, made very clear, especially where a carer is falsely claiming to be a close relative to avoid the requirement to notify the local authority of a private fostering arrangement. This raises a potential safeguarding issue.
However, we are not convinced that the way forward is to apply the private fostering arrangements to all foreign national children who live here without their parents. This would extend the arrangements to a large number of cases where children are safely looked after by close relatives. However, we agree that this is an important issue, as children from abroad are in a particularly vulnerable position. It remains crucial that professionals who work with children from abroad, including border staff, schools, health professionals, housing officers, et cetera, can spot private fostering when they see it and notify the relevant local authority.
The current private fostering guidance asks local authorities to undertake awareness-raising activities with agencies, such as schools, to enable professionals to encourage private foster carers and parents to notify the local authority. Front-line professionals are also encouraged to notify the local authority of a private fostering arrangement that comes to their attention where they are not satisfied that the local authority has been, or will be, notified of the arrangement, so that the local authority can check that the arrangement is safe and suitable.
We are reviewing the school admissions guidance for children from abroad and are aiming to publish a revised version in January 2014. We will also shortly be publishing revised guidance on safeguarding in schools. The new guidance will specify schools’ statutory duties in respect of safeguarding, provide guidance on roles and responsibilities, including making referrals to child protection services, and indicate where to find up-to-date guidance on particular issues.
In addition, we have a project under way looking at the requirements on local authorities and the role of other agencies and services with a view to focusing efforts and strengthening the response to children most at risk. We will be talking to relevant partners and agencies, such as the Home Office, the British Association for Adoption and Fostering, Children and Families Across Borders, Ofsted and local authorities, to identify what targeted action might be taken to improve practice in local areas. There are a number of issues that we are looking at, and I am happy to share them with the noble Baroness.
An important issue is whether it is better to resolve the immigration status of children and return them to their home country as soon as possible after their arrival in the UK, rather than leave it until they reach the age of 18, by which time their ties with their home country have been greatly reduced. The current practice is to consider the needs of each child on a case-by-case basis and carry out an assessment of what is in the child’s best interests. The child and their social worker have a central role in this assessment, and contributions are usually also sought from other relevant agencies.
We have some sympathy with the argument about early return but, referring to other debates we have had, we need to be aware that many of these children may be vulnerable and have arrived in the United Kingdom having suffered very difficult and sometimes traumatic experiences. It is often the case that their parents cannot be traced or that the reception arrangements in the country to which they would be returning might be inadequate. This has meant that in practice, with the exception of transfers to other European Union countries, the UK rarely enforces the return of unaccompanied children to any country. The important issue is to try to work out what is in the best interests of the child.
I would be happy to provide any more details on this to the noble Baroness. I welcome her expertise feeding in as we consider this. I hope that in the mean time she will be content to withdraw her amendment.
Baroness Howarth of Breckland
My Lords, I am grateful for the noble Baroness’s full reply. The only point that I would pick up is that sometimes social workers will decide to allow children to remain indefinitely without taking action, simply because the social worker is anxious that if they do anything the child will immediately be deported. It is that working together between all the agencies and organisations, including education and the Home Office, and making sure that the child’s welfare is at the centre of any decision, that needs to be taken forward. Otherwise, people make decisions that they think are in the best interests of the child but, in the long term, turn out to be disastrous for their growth. I beg leave to withdraw the amendment.
Baroness Howarth of Breckland
My Lords, my name is attached to a number of these amendments. I would like to raise some issues that I came across in eight years’ involvement in CAFCASS and many years before that as a social worker. I hope that the Government will look at these issues between now and Report. I would like mediation to be replaced by meetings where information is given. At these meetings, people can find out what they should be doing next; they are often highly successful in helping the parties talk to each other in a different way. If you use mediation, it has a special nature.
Mediators often say that they will not intervene to give direct information and advice, certainly not as regards helping parties to think directly about the implications of their behaviour. Mediation is often about sitting back and thinking things through. When you are using the court arena simply to fight your battles, as the noble and learned Baroness, Lady Butler-Sloss, so eloquently described, that type of mediation is totally unhelpful. I have been allowed to sit in and watch CAFCASS officers intervene on parties in an extremely direct way. That has had much more impact than the kind of therapeutic situation which is often delivered through the mediation association—I chaired a government working party on this many years ago—in which people, particularly those in conflict, find it very difficult to sit and reflect on their behaviour.
It is certainly important that we have recognised mediators but I hope that mediation will be looked at in a much broader sense than simply reflective mediation. That was one of the issues which came forward in the pre-legislative scrutiny to the 2006 Act. I think it was that Act although it could have been another—I have been here too long. A number of people from mediation groups came to talk about how they could not direct, or be directed themselves, in their work with families. These families often need a much more behavioural approach, rather than a reflective one. We need to think through some of these issues before we come to a conclusion. However, I stand by my name being attached to those amendments which seek to leave out “mediation”.
Lord McColl of Dulwich
My Lords, I support this amendment. We need to take notice of what the noble and learned Baroness, Lady Butler-Sloss, has said, given her enormous experience. Let us leave out “mediation”.
Lord McNally
My Lords, before I was so rudely interrupted, I was about to prompt withdrawal of the amendment by the noble and learned Baroness, Lady Butler-Sloss, who I hoped would be convinced by my eloquence. What I was saying when the bell went is that the term “mediation” in the title helps people to know what the purpose is and encourages them to be brought into it. The debate has been interesting. There are those who are arguing that it will frighten people away. We have commissioned some research and perhaps we should await that research and then return to this debate. When the noble and learned Baroness, Lady Butler-Sloss, has seen the research she will say, “Oh, my goodness, I was wrong. The noble Lord, Lord McNally, was right all along”. Mind you, we are paying for the research. On that basis, I hope that she will agree to withdraw the amendment.
Baroness Howarth of Breckland
I apologise but just before the Division Bell rang the Minister talked about knowing what was on the tin. The problem with the word “mediation” is that it conveys a range of different concepts, even within the professional world, and certainly if you are a warring parent. I am not saying that we should not indicate what is going to happen in the meeting and that people may be asked to look at how they can approach their relationships, if not mend them, but “mediation” is a difficult word for everybody, inside and outside the profession, and I think that we should look for another one.
The Earl of Listowel
I support my noble and learned friend’s amendment and that of the noble Baroness, Lady Hughes. Listening to the noble Baroness, I remember hearing recently a male acquaintance speaking passionately about his despair at not having access to his child. It seemed that his wife, a wealthy woman, had really done him down. He is poor and does not have the access to legal help that she has. Listening to men talk about this so often is very sad.
I will speak during the debate on the amendment of my noble friend Lord Northbourne about the issue of children having access to their fathers, which is desperately important. It is also important to remember that the evidence seemed very clear that while there is a perception that courts are finding favour more with women and that women are too effective at frustrating what the courts want, in practice this is not happening. I heard a presentation of the evidence a few months back but am ashamed to say that I cannot remember the presenter of the details. As my noble and learned friend has just said, the Justice Committee agrees with that. It seems that the Minister agrees too, so I would be grateful if he could help me by providing the information. I think this was a careful and thorough look at cases by an academic to check the perception that there was a bias towards women. In fact, the research showed, quite conclusively and clearly, that this was not the case. I would be grateful if the Minister’s expert advisors might help with that information. He can write to me with it. It is a perceived problem but it is not a real problem. What is true, however, is how tragic and difficult these issues so often are.
I very much regret that I cannot support the Government on this occasion. I examined a similar proposal to that in the Bill in great detail on a previous occasion. In doing so, I visited two contact centres and spoke to staff and parents there. I also spoke with professionals from the Anna Freud Centre who supported such families. My concern is that, at best, the Government may be raising expectations in parents which will only add to litigation and harm children as the conflict between their parents is prolonged. This is the point that my noble and learned friend made and it was also a concern that Norgrove had. In Norgrove’s family review, at first he was favourable to the idea of having some stipulation in the law that this should happen. Then he looked at what happened in Australia and became determinedly against going forward in this way. At worst, my fear is that the Government may be putting children more obviously at risk as courts are pressured to grant more contact to both parents.
By the time these cases come to court, there are often mental health or substance misuse issues within the family. What I heard from the contact centres and the professionals last time around was that, too often, a parent—and often this would be the father—was granted access to his child before he had addressed his alcohol misuse issues, for instance. Quite often the agreement would be that the father would have supervised access on two or three occasions, but that would be gone through in a quite perfunctory way and the father would have access. I should perhaps not name a gender here; the parent could be male or female.
Following this and before we legislated in this area—it was very helpful at the time—the courts inspectorate produced a damning report on child safeguarding in the private family courts, finding that court reporting officers were not communicating child protection concerns to the relevant authorities. If anything, back then the bias seemed to be too much in the other direction: courts were not taking enough care about granting contact between children and their parents.
Family courts are under great pressure financially. A large increase in litigants in person adds a further burden. It would be wisest to allow judges to make decisions about what they consider to be in the best interests of the child without the distraction that the Government’s proposal offers. I am strongly of the view taken by the National Society for the Prevention of Cruelty to Children, Coram—a wonderful institution which produced the model for the children’s centres that have proved so successful—and my noble and learned friends that the Government should think again about this. I look forward to the Minister’s response.
Baroness Howarth of Breckland
My Lords, I want to intervene briefly to say two things. All this is about perception as against fact and we have to ask ourselves why we are dealing with this clause at all. The noble Baroness, Lady Tyler, will know very well that CAFCASS, when being pressed by fathers who were saying that the presumption was against them, carried out research which showed that there was no presumption either way.
Of course there are miscarriages of justice. We cannot deny that from time to time in all areas of the law there will be miscarriages of justice, for both women and men, but that is not to deny the overriding information and the principle. I am very concerned that if we lose the paramountcy of the welfare of the child, the confusion that will follow will lead to other perception issues.
The other perception issue is very clearly, as one or two noble Lords have intimated, what is in the press—and that is that the father, it is usually the father, will be able to gain shared parenting. What they mean by shared parenting is half and half. We know how damaging that would be to a child, as the noble Baroness, Lady Tyler, said, when seen through the child’s eyes. If you talk to children and young people who are before the court, they want their parents to stay together—you have to work through all that—and then they want their lives disrupted as little as possible. They want to remain in the same school; they want to be able to see their friends at the weekend; they do not want to take a suitcase somewhere else every two weeks—although, I have to say, some children quite enjoy it. I have talked to kids who really enjoy having two places and adjust to it. However, many do not, and therefore it is important that the child’s wishes and feelings are taken firmly into consideration. I think the perception will be that fathers, in particular, can get a different agreement from the court, rather than the paramountcy of the welfare of the child being the main issue.
Several noble Lords have alluded to the Australian experience but we should take it extremely seriously. If this has been tried elsewhere and has gone seriously wrong, why should we do it here and create the same situation? We should remind ourselves that they had this legislation and that the research evidence showed that the number of cases where children’s time was divided increased substantially. The whole thing became dysfunctional to the point that in 2011 the Australian Government were forced to legislate again to prioritise the safety of children over the wishes of adults. I am quite sure that this Government, particularly the noble Lord, Lord McNally, would not wish to find that we were not prioritising children and had to change the legislation after damage had been done. So let us deal with the perceptions and base our legislation on fact.
Baroness Hamwee
My Lords, the noble and learned Baroness says that the judges would cope with Section 1 of the 1989 Act being amended by this but I do not think we want to wait for a judicial review as to exactly what would be meant if the new words were inserted in Section 1. If they were inserted in the form that we have in Clause 11, we would have Section 1(1) saying that welfare shall be the court’s paramount consideration—if that is not a presumption, I am even more concerned about it; then Section 1(2) saying that in dealing with delay the court shall have regard to that general principle; and then proposed new subsection 2A referring to presumption unless the contrary is shown.
I have never practised in this area so maybe it does not matter, but I am very unclear as to how weighty the contrary needs to be. To put it in different terms, are we talking about the contrary shown on a balance of probabilities or beyond reasonable doubt? The noble and learned Baroness has those words in her amendment, to which I and my noble friend Lady Walmsley, who is not in her place, have added our names. I do not think they would have the same difficulty when tied to having particular regard as they would to a presumption. I become more and more confused as to what Clause 11 means by a presumption unless the contrary is shown. A presumption is a presumption.