Schools: Curriculum Update
Lord McNally Excerpts(10 months, 3 weeks ago)
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Baroness Barran (Con)
The right reverend Prelate makes a very important point. The House is obviously familiar with the emphasis we have put on freedom of speech, particularly in our higher education institutions, but the skills of critical thinking, analysis and debate—which data will feed into in coming to objective and balanced views and an ability to listen to others—obviously need to start in our schools and homes.
Lord McNally (LD)
My Lords, these exchanges have already pinpointed the problem that the noble Lord, Lord Holmes, is trying to highlight. The skills required by the next generation to understand and deal with new technologies are real and present now. Quite frankly, the list he put forward of skills to be acquired are beyond the reach of a single department, including the Department for Education. His idea of a commission, possibly sponsored by the Prime Minister, who has skills in this area, is now needed to avoid moving into another era when most of our population are ill-equipped to deal with the technologies serving them.
Baroness Barran (Con)
It would help to understand some of the specific areas of concern. Data and its use are firmly embedded in the mathematics, science, geography and computing curriculums. Computing is a statutory national curriculum subject from key stage 1 to key stage 4. We have introduced, and are introducing, a number of digital-focused T-levels. The fundamental point is that, as shown in the OECD PISA surveys, without strong mathematics and reading, you cannot achieve literacy in any of these things. That is why our focus on those building blocks is so crucial.
Safeguarding of Young Children
Lord McNally Excerpts(1 year, 11 months ago)
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Baroness Barran (Con)
I am sure that the noble Lord’s suggestion may be part of the solution, but to expect any single thing to resolve these difficult and complex problems will not be sufficient, hence the more comprehensive approach that we are taking.
Lord McNally (LD)
My Lords, when I became a Minister with some of these responsibilities more than a decade ago, my noble friend Lady Walmsley gave me two pieces of advice. First, she said, “Always remember that social workers do not murder children, although they sometimes get the opprobrium when something wrong happens.” The other piece of advice was that the interest of the child comes first.
With that as a background, last year, Emily Dugan, the social affairs correspondent at the Sunday Times, ran a series of articles about mistakes being made through either misdiagnosis or misinformation where children were taken away from families with traumatic results. Will the report that we are expecting on Thursday cover this element, because it causes problems for the families affected and puts additional burdens on social workers instead of concentrating on the children in real danger?
Children and Social Work Bill [HL]
Lord McNally Excerpts(7 years, 9 months ago)
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Lord McNally (LD)
My Lords, I can see that the Minister is straining at the leash to answer this amendment. I make only two points, partly from my experience as chair of the Youth Justice Board for England and Wales and partly as a member of the committee of inquiry chaired by the noble Lord, Lord Laming, into looked-after children in the criminal justice system.
What attracts me to this amendment is that it approaches a very real problem from two directions, both in a constructive way. What has struck me over the past few years in considering the problems of looked-after children and the response of various bodies to their needs is that there is still a silo mentality in the operation of some of those bodies, as well as a chronic lack of exchange of information. Those dealing with a child at any point in its journey through the system should have the most comprehensive picture possible of that child’s vulnerabilities and needs. In the best of practices, that happens but, all too often, it does not happen.
On the other side of the same penny, the amendment proposed by the noble Lord, Lord Warner, deals with the lack of awareness of the children themselves, and those who care for them, of their full range of entitlements. Having a responsibility to make children, or those with responsibility for them, aware of those entitlements, can do nothing but good in getting them the care they need at any particular point in their lives.
Lord Watson of Invergowrie (Lab)
I thank noble Lords who have contributed to this short debate. I am happy to signify my support for the amendment in the name of the noble Lord, Lord Warner, which is a common-sense amendment. Let me just express the hope at the outset that the Minister will find it in him to make a clean sweep of all our contributions—we shall see.
In moving Amendment 4 in Committee last week, I mentioned some of the arguments in favour of broadening the scope of the corporate parenting principles outlined in Clause 1. It is logical to adopt as comprehensive an approach as possible to corporate parenting and ensure that all those who can improve outcomes for looked-after children and care leavers have a role to play in parenting those children. In his reply on day one, the Minister stressed that the principles applied to all local authorities in England and that they apply to all parts of the local authority and not just to children’s services. That is important. He went on to highlight the fact that other bodies—such as central government, the National Health Service or housing organisations—are not corporate parents and therefore do not fall within the remit of the Bill, or this part of the Bill. He pointed out that NHS clinical commissioning groups had specific responsibilities for looked-after children, who were also specifically mentioned in NHS England’s mandate. That was certainly welcome to those who were unaware of it.
This amendment goes rather wider and includes the police but, given the proportion of looked-after children and recently looked-after children who have become involved with the youth justice system, that also has some relevance. That being the case, I hope the Government will accept the amendment proposed by the noble Lord, Lord Warner, which seeks only to formalise the relationship between local authorities and other organisations, not least housing services, which increasingly are not found within the responsibilities of local authorities. What is of paramount importance is that there is joined-up thinking and working, leading to an outcome whereby all agencies, to use that umbrella term, ensure the most productive relationships on behalf of looked-after children.
Section 10 of the Children Act 2004 includes a duty on local authorities to co-operate with “relevant parties”. However, if that mechanism were working effectively, noble Lords would not have been contacted by various organisations working with or for looked-after children seeking to have the relationship tightened up to provide better outcomes across all agencies. They clearly believe that more needs to be done and we should listen to them, as they are involved on a day-to-day basis with the children the Bill is designed to help.
The Minister mentioned last week that the Government would look at the lessons that might be learned from Scotland. I hope he will note that there the widest possible range of organisations is given the role of corporate parents. Whatever potential obstacles appeared north of the border were clearly overcome. The Minister also stated:
“I would expect partners such as police and health bodies to consider how they can contribute to supporting care leavers. I also hope that many organisations in the private and voluntary sectors will commit to supporting young people leaving care through the care-leaver covenant”.—[Official Report, 29/6/16; col. GC 52.].
I submit that expecting and hoping sounds more like a recipe for disappointment than anything else. Such sentiments are by no means firm enough and the Minister should look to the Bill as a means of ensuring that those things happen. That is what young people leaving care, as well as those assisting them in doing so, have a right to expect.
Children and Social Work Bill [HL]
Lord McNally Excerpts(7 years, 10 months ago)
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Lord McNally (LD)
My Lords, it is always a pleasure to follow the noble Lord, Lord Judd. He leaves us with some very deep thoughts.
I open by welcoming the Bill as an indication of the Government’s desired direction of travel as set out in the Minister’s opening remarks. Like the noble Baroness, Lady Dean, the noble Lord, Lord Wills, and a number of others, I also welcome the Bill starting in the Lords. The speakers list today is a virtual Who’s Who of experience and expertise on the care of children. I hope that Ministers are in listening mode as the Lords carries out its business. To pick up a point made by the noble Lord, Lord Judd, I, like most noble Lords have been overwhelmed by the briefings from the various interest groups. I am sure some may feel disappointed that their carefully crafted briefs may get two lines in a speech. I reassure them, however, that these are all carefully stored away and used to great effect in Committee and at later stages.
My reason for speaking today relates to my declaration of interests. I am the current chairman of the Youth Justice Board for England and Wales, which has direct responsibility for many of the children who we have been discussing today. Between 2010 and 2013 I was the Minister at the Ministry of Justice with responsibility for family courts, during which time I nudged down the time taken for adoption. During the past year, I have had the honour and privilege of sitting on the inquiry into the life chances of children in care sponsored by the Prison Reform Trust. A number of noble Lords have referred to its recently published report, In Care, Out of Trouble. Our chairman was the noble Lord, Lord Laming, and I pay tribute to him, not only for his skill in chairing the committee but for a lifetime of commitment to the welfare and safety of children.
I recently went to a lecture by a former social worker, now an academic, who said that when he was training in the 1980s the children we are talking about today were categorised as bad, mad or sad. Such pigeonholing would be seen as politically incorrect and unacceptable today. Yet it is still true that the kind of support and treatment a child receives often depends on whether they find themselves in the criminal justice system; are receiving treatment for a definable mental health problem; or have simply drawn the short straw in life in terms of poor housing, intergenerational unemployment, domestic violence, drug or alcohol abuse, undiagnosed learning difficulties or exclusion from mainstream education. There has been much progress in our approach to childcare since the crude categorisations of the 1980s. However, it is also a clear indication that there is still much to do.
As we have heard from a number of noble Lords, we have to do more and become more sophisticated in listening to the voice of the child. As the noble Lord, Lord Nash, himself indicated, we also have to do more to ensure that the various agencies responsible for a child’s welfare become more willing and more efficient in sharing information so that, at any point in the child’s journey through the system, those making decisions about safety and welfare have the fullest possible picture of their needs and vulnerabilities. I echo the point made by the noble Lord, Lord Bichard: some of the greatest silos that still exist are in Whitehall. One suggestion of the Laming committee was a ministerial committee to help break those silos down.
The Youth Justice Board has been the pioneer and pathfinder in this respect. Our youth offending teams bring a cross-disciplinary, holistic approach to their work. Today we oversee record lows both in the number of young people under 18 in our secure estate and in first-time entrants to the criminal justice system. That has not been the success of the YJB alone. It has been because of the buy-in to such a holistic approach by the police, the courts, social workers, children’s services, probation, youth workers and educational and health professionals. That approach is underpinned by the statutory duties written into the Crime and Disorder Act 1998. That is why the Government’s desire to see, in this Bill, new ideas and providers to encourage innovation among the new regional authorities is entirely commendable but also a cause for concern. We will have to examine Clause 15 very closely in Committee. Clause 15(2), which reads very much as a deregulation clause, may indeed allow a thousand flowers to bloom, but it may also enable authorities to ignore responsibilities which hitherto have been underpinned by statute.
A number of noble Lords have referred to the work of the Laming committee, on which I served. The inquiry gave us some important benchmarks. It is worth remembering that 94% of children in care do not get into trouble with the law. However, children in care are six times more likely to be cautioned or convicted of an offence than other children. The Laming committee was careful not to draw a straight-line cause and effect from those numbers. They enter the criminal justice system not because they have been in care. They are in care because they suffer many of the same influences and disadvantages faced by other young entrants to the criminal justice system. What Laming found, and I hope the Bill will address, is that looked-after children all too often have disadvantage heaped on disadvantage. In evidence to Laming, too many children spoke of a pass-the-parcel existence, with no constant adult role model or mentor. The Home Office continues its inexplicable dog-in-a-manger attitude to establishing a national police protocol to prevent the overcriminalisation of children by police being called to children’s homes for matters which in a domestic setting would be settled by mediation, restorative justice or just plain common sense.
The overrepresentation of black and ethnic minority children in our care and criminal justice systems requires focused action at all levels of government. The YJB has worked closely with the noble Baroness, Lady Young of Hornsey, on these matters. We are also engaging with David Lammy—to whom she referred—whose report was commissioned by the Prime Minister.
There is no time today to go into more detail about the recommendations of the Laming report, but it should be required reading as the Bill moves forward. I will highlight one other recommendation, referred to by the noble Lord, Lord Farmer, which is to provide early support for children and families at risk. That is surely the main learning from the last 30 years. The sooner and earlier we get upstream in dealing with these issues, the better the chance we have of solving them. It is important to recognise the strong influence that the family context can have on a young person, their offending behaviour and the risk of their becoming a perpetrator or victim of crime. In the context of the Bill, I welcome the expanded troubled families programme, which incentivises services to come together and consider the overlapping nature of the problems being faced, such as mental health, domestic abuse and youth offending, rather than consider each problem in isolation.
Noble Lords have heard a lot of references to mental health and there is a clear body of evidence demonstrating that good emotional well-being is central to a supportive experience in the care system. Yet there is also a clear need for a more dedicated form of support to improve the emotional well-being of looked-after children. I have been amazed by how far children can get into the criminal justice system before mental health needs are identified and addressed. As it stands, the Bill represents a missed opportunity to legislate for emotional well-being and mental health assessment for children entering care. I pay tribute to the noble Lord, Lord Bradley, who is not in his place today. His work and reports on mental health, particularly the liaison and diversion services which the Government are taking forward, are having a beneficial impact in this area.
Finally, I refer briefly to the proposals in Part 2 of the Bill. The noble Lord, Lord Warner, in characteristic form, clearly encapsulated the concerns about the weakness and vagueness of the Bill as it stands. In Committee, we will want to examine closely the proposals concerning the education and training of social workers and related matters around Clause 25, as well as the general professional status of social workers. The idea of a child safeguarding practice review panel has its attractions, as a response to major public concern when a death or major abuse occurs. It should look for lessons to be learned and best practices to be promoted, not be a witchfinder general, with all the dangers set out by the noble Baroness, Lady Meacher.
We have already registered our displeasure at the framework nature of the Bill. In passing, I have one idea: the convention on Third Reading amendments could be abandoned on framework Bills. That would concentrate the Government’s mind. I do not doubt the sincerity of Ministers’ intentions to provide better life chances for children who come into the care of the state. There is much to commend in the Bill’s intentions and direction of travel, but if Ministers have any sense they will draw on the collective wisdom of this House to ensure that it is a better Bill when we send it to the other place.
Children and Families Bill
Lord McNally Excerpts(10 years, 4 months ago)
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Baroness Walmsley (LD)
My Lords, I believe that there is only one a priori formula, as the noble Baroness puts it, that we should have in our mind today, and that is the UN Convention on the Rights of the Child, which gives children the right to be safe and protected and the right to a family life. We all agree that that right to a family life, where it is in the child’s best interests and safe to do so, should include an ongoing relationship with both parents. Unfortunately, in many cases the parents themselves feel that they cannot continue to do that within the same home, so they separate. I believe that it is the Government’s intention in this clause to give the child that right back and ensure that the child continues to have a relationship with both parents where it is safe to do so and in the child’s best interests.
Governments make their intentions clear in more than one way. The wording of legislation is one thing, but Pepper v Hart is another. I am hoping that, in his reply, my noble friend the Minister will make it very clear that what the media have been saying is not the Government’s intention. Indeed, my noble friend has made that very clear to probably all of us in this Chamber now in private meetings, but of course it has to go on the record for people to be able to rely on it, and I am very much hoping that he will be able to do that.
The noble Baroness, Lady Hughes, mentioned the media. I call on the media—indeed, I challenge them—to give just as much space and just as large headlines after today’s debate to the Government’s real intentions on what this legislation and any surrounding regulations really mean, rather than what they mistakenly thought that they meant, which caused an awful lot of concern and worry to families who can really do without that sort of worry when they are going through the stress of breaking up and wondering what they can do to cause the least possible damage to their children’s lives while they do so. I very much look forward to my noble friend’s reply.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, I am very pleased to follow my noble friend in this debate, not least because well over two years ago, when this legislation was first mooted, I went to see her as the oracle on matters to do with the welfare of children. I said that the Government were thinking of legislating in this area, and I remember that she gave me very clear marching orders—whatever else the Government did, it must be clear that the paramountcy of the welfare of the child should be ingrained in this legislation. I have certainly taken that to heart as this legislation has passed through.
It is also true, as has been indicated and as the noble Baroness, Lady Hughes of Stretford, referred to, that we learnt lessons from the Australian legislation and we have listened to what has been said as this Bill has moved through both Houses. We have been trying consciously to get the balance right. When we were talking about the misrepresentation in the press, there was an opinion that the legislation as it stood was biased in favour of the mother. What we have been trying to do in this legislation is to have wording that gives a very clear guide that, where possible, and as my noble friend Lady Walmsley has just indicated, it is in the interests of the welfare of the child that both parents should be involved.
Lord McNally
I hope that the noble Baroness takes what she has said to heart; what I am trying to avoid is replacing one perception with another. There is equal danger that, after a debate such as this, another perception gets flagged. What I want is to emphasise what is in the legislation and what is intended by the legislation and to use all the means at our disposal to make sure that that is fully understood by all the agencies involved and the widest range of public opinion as possible. As my noble friend has indicated, that also means that there is a certain sense of responsibility on the part of the media in reporting the intentions of Parliament.
When a case is before the court, neither parent has a right to any specific level of contact, direct or otherwise. The court must consider the child’s welfare above all else and make its decision on that basis, weighing up the evidence before it. That will continue to be the case, and nothing in Clause 11 changes that. The wording of the clause is deliberately neutral; it does not seek to pre-empt court decisions and, as now, it gives courts the flexibility to determine the arrangements that they believe are best for the child, taking account of all the evidence before them. We think that that is the right approach.
However, I agree wholeheartedly with those who have highlighted the need for a clear understanding of the policy. The reality is that any provision which impacts on parents and their private family relationships is extremely sensitive. Even the wording of the amendment could be misinterpreted in the media and give rise to unintended consequences. There is no guarantee that it would not. For example, as I said, a parent who already has very limited contact through no fault of their own may interpret the wording as endorsing that position. Our priority must be to draft legislation which achieves our intended effect and to take other steps to communicate to society more widely what that effect is. As I said, it is unlikely that separating couples will look to the Children Act 1989 to try to predict the outcome of their dispute. They will look for information online or talk to their friends and family, to organisations which they trust or their legal advisers.
The Government’s “Sorting out Separation” web app will be the first port of call for many parents looking for information about any aspect of separation and it will then signpost them to further sources of help. The app itself will set out clear information for parents about the law, and this information will make it plain that the change is not intended to be about the division of the child’s time. We will also ensure that organisations with the Help and Support for Separated Families kitemark have clear and accurate information about the changes. The web app will be embedded on the sites of organisations that have this kitemark, including, for example, Relate. This means that people accessing these websites will be able to click on a link and access information on the web app. In addition, the minority of separating parents who turn to the courts will need, first, to have attended a MIAM, and they will be encouraged to find a different way of resolving their dispute. Parents will be given information through all these routes and through other services that they may engage with.
The way to ensure an accurate understanding of the policy is for the Government to work with organisations in the sector to develop clear information which can be disseminated through these routes, not to reword the clause in an attempt to prevent inaccurate reporting of what we want to achieve. Officials have already begun discussions about the information to be developed and these will continue. We want to work with relevant voluntary organisations so that we are confident that we can address the concerns.
Right from the beginning I have never been in any doubt about the intentions of the various—in this case—noble Baronesses who have contributed to this debate. However, it is a matter of judgment, and I am asking for the House’s support this afternoon for the Government’s position. I have thought long and hard about how we can address the problems of misperception and misrepresentation, and I honestly believe that the solution put forward by the noble and learned Baroness, Lady Butler-Sloss, may lead us into the same problems but via a different route. We have tried very hard to get the balance right and, even at this late stage, I ask her to withdraw her amendment.
Baroness Butler-Sloss
I thank all noble Baronesses for their contributions and I hope that the Minister will forgive me for not thanking him. I am particularly grateful to my noble friend Lady Howarth, who has put right the perception that in some way the courts are unfair to fathers. It is a perception which has, from the beginning, been inaccurate. When I was President of the Family Division, I went round the courts and made a lot of inquiries. After I had retired, I was very grateful for the CAFCASS report, which absolutely clarified what I had understood to be the case from judges right across the country—that they try cases fairly and that there is no prejudice against fathers.
I find it difficult to understand why the Minister thinks that what I think is a very modest amendment for clarification is going to be widely misinterpreted and somehow bring back the situation before Clause 11 was put forward. I take issue with him on one point. He talks about going to legal advisers. How many people in this country have the money to go to legal advisers if they do not have legal aid? It is this Government who have taken legal aid away from private law cases. When he talks about going to legal advisers, it will be a very small minority of that very small minority who actually fight cases who will get to lawyers at all. They may or may not go on the web and they may or may not read what I consider to be the excellent advice that the Government give. They will look at what the press has said and, despite the wonderfully impassioned suggestion of the noble Baroness, Lady Walmsley, may or may not choose to take any interest in this particular debate, and may perpetuate a very dangerous perception.
I must say that I worry about ordinary people on the ground who cannot get on and decide to separate. I sometimes used to say to warring parents, “You are the last people who should be making decisions about your own children because you cannot think straight about what is happening next”. Those are people—without legal advice, lawyers in court or probably ever going to court—where one of them will be dominating the other and the arrangements for the children will be unsatisfactory and, in some cases, positively dangerous. All I am asking for is some clarification, particularly for a mother because there may well be a more dominant father, although there can be a dominant mother. I have certainly seen dominant mothers and not only in the American press. It is possible that the mother or father who is not the dominant parent will look at the law and see that there is an explanation of what is in Clause 11 with this amendment.
I am truly sad that the Minister thinks that that will create some misinterpretation. Speaking for myself, I cannot see it and I rather hope that noble Lords will not see it either. I would like to test the opinion of the House.
Lord Elystan-Morgan (CB)
My Lords, there is very little that I wish to add, or indeed properly could, to what has been said so splendidly by everyone who has taken part. I join in congratulating my noble friend Lord Northbourne. He has been dedicated, committed and consistent in his campaign, and I am sure that it does not end today.
The one point that I wish to make, which follows on from what has already been said by more than one contributor to this debate, relates to fathers. We hear so often of fathers who have been deprived of custody of their children, and indeed of contact with them. A huge campaign, which I think is very misinformed, has been fought over the years, and I know many judges who have suffered considerably on account of the malicious attitudes of people in that connection. The point that I wish to make is the obvious one: we should be thinking all the time of those hundreds of thousands, possibly millions, of fathers who have no interest whatever in maintaining any relationship with their children. As a circuit judge sitting in family matters, I felt that if there was a magic wand that one could wave to bring about a better situation in the family context, it would be someone to inculcate those people with a feeling for their responsibility.
Lord McNally
My Lords, all the contributions that have been made share the view of the noble Lord, Lord Northbourne, that it is important that children have appropriate support and guidance as they go through life, and as they themselves become parents. I do not think that there is disagreement here, although I think that a number of noble Lords caveated their support for the noble Lord with the same doubt that I have over whether what he seeks to do is necessarily best done in primary legislation.
Still, a number of the points that have been raised colour this debate. I fully agree with the noble Baroness, Lady Howe, and the noble Lord, Lord Ramsbotham, among others, that the earlier we start educating children about the responsibilities they will one day have as parents, the better, and I think that sometimes we have been afraid of taking those messages into school and the mainstream of our education.
Baroness Hughes of Stretford
My Lords, this has been a very long debate and I do not intend to extend it much longer, but I want to join the noble Baroness, Lady Howarth, as another non-lawyer in redressing the balance slightly. I have listened very carefully to all the excellent contributions. I say at the outset to the Minister that this situation presents a challenge to the Government and I hope that they will rise to it constructively; I am sure that he will try to do so.
We have heard from people across the House today, all of whom are very experienced in one way or another and absolutely committed to the welfare of children, yet this is a highly contested issue with at least three separate points of view being expressed during the course of today’s debate: those who think that there is an issue to be addressed and that the amendment from the noble and learned Lord, Lord Lloyd, attempts to address it; those who do not believe that there is an issue to be addressed; and those who believe that there may be an issue but this amendment is not the way to do it. I think there is an issue but, although we will wait to see how the noble and learned Lord sums up, I do not think it is one that the House could resolve by amendment to this Bill. However, I hope that the Minister, having heard the debate tonight, will be prepared to examine it further before Third Reading and come back with some proposal to try to reach a resolution.
It is clear from the debate that there has been a change in the way in which courts, rather than social workers, can apply the Children Act. That change was as a result of the intervention of the noble and learned Baroness, Lady Hale. In those situations where a child is living with someone who is a possible perpetrator of proven abuse to another child, whereas previously the court could have said, “That’s enough, that’s the threshold; we will now consider the welfare issues”, the noble and learned Baroness has said, “No, that is not enough”. Now the court cannot even consider the welfare issues to the child in the round. That is the crucial change.
I will not go through the arguments that have been put forward, but I shall just make one or two comments. The noble and learned Baroness, Lady Butler-Sloss, for whom I have the most enormous respect, said that there ought not to be the possibility of court intervention on the basis of suspicion. Normally that would be right, but the problem in this case is that it is not just suspicion; there is a proven fact of harm or death to a previous child by one or other, or more, of the parties. The difficulty is that we do not know which one.
The noble and learned Lord, Lord Walker, said that it is a terrible thing if a child is removed from its home on unfounded evidence. Yes, it is, but it is also a terrible thing if we learn only with hindsight that that child was actually living with someone who was the perpetrator and who was a danger to that child and injured or killed that child. Those are the very difficult judgments. I feel that, faced with that very difficult situation, I would be more comfortable—I am entirely with the noble and learned Lord, Lord Judge, on this—if a court were considering those issues rather than it having to say, “No, we can’t look at it, because we’re not allowed to any longer because the threshold can’t be met and that is the current ruling”. That is a great concern. As I say, I hope that the Minister will rise to the fact that we have a hotly contested issue on a very serious matter on which people whom we respect across the piece have come to different judgments. This needs to be resolved, and I hope that the Minister will set out a pathway by which that can be achieved.
Lord McNally
My Lords, I will certainly try to rise to the challenge. It would be a lot easier to rise to if the Titans who have clashed today had come to anything like a conclusive agreement about how it should be met. I have never been one to think that Parliament should never challenge the views of our courts, or vice versa. I have said before that I think a little friction between the two is sometimes quite useful. On the other hand, we have a separation of powers where we entrust our learned judges with making wise decisions.
I am therefore a little tremulous about suggesting that we accept an amendment that, if the noble and learned Lord, Lord Walker, is to be believed, and I am sure he is, flies in the face of six separate judgments by either the House of Lords in the old days or the Supreme Court. We have to think very hard before we pass an amendment that would challenge those judgments. If the case that has cast the matter into doubt was an artificial case aimed at clarifying the law—I have to say that the words you usually use are, “With the utmost respect”—it did not work.
I cannot make commitments to the noble Baroness, Lady Hughes, that we can solve this between now and Third Reading. Of course I shall take back the debate that we have had and the considerable arguments that have been made. It would be impertinent of me to try to encapsulate those; those who have been in the debate have heard cogent arguments on both sides.
All of us, whether we have had these responsibilities or are just ordinary citizens, know that when these things go wrong and a child is murdered, the media pack descends on, usually, a social worker and the consequences are extremely grave. On the other hand, as we also know, voices are raised saying that we are too casual in our willingness to take children into care. Accusations have been made at the other end of the corridor that local authorities can be cavalier. I fully take the point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Hope, that if you are going to take a child from its family you must have proof as well as suspicion.
These are very weighty matters. I put it to—I was going to say “my noble friend” but he is more like the constant thorn in my side—the noble and learned Lord, Lord Lloyd, that today would not be the day to test the opinion of the House. If he were to do so, I would ask the House, in all sense of responsibility, to vote against him.
The Government believe that Section 31 is robust enough. The point was made that it is not a threshold for social workers to make child protection interventions. That has been made very clear. The rarity of the case was dismissed. The noble and learned Baroness, Lady Hale, rightly said that so artificial a case on such a single issue is the rarity. That is where some of the confusion has arisen.
We have had some very strong arguments. In the light of the very full debate held in Committee, we have discussed this further with the chief social worker, the Association of Directors of Children’s Services and the College of Social Work, and they have all confirmed that they do not support this amendment.
If the noble and learned Lord, Lord Lloyd, does not press the amendment, I do not want to inflict another debate like this on the House at Third Reading. I do not think it would do a service to the House or be the way to make a very important law. This will have to stand for a very long time. If there are initiatives or suggestions that can get some unanimity across the Chamber—and, perhaps even more helpfully, on the Cross Benches—there may still be some time for movement, but as it stands now, and in the light of the advice that the noble and learned Lord, Lord Walker, gave us in a considered and thoughtful speech that Section 31 has stood the test of time and has been examined six times during that period, it would be impetuous of this House to back the amendment moved by the noble and learned Lord, Lord Lloyd, this evening. If he wishes to press it, I will urge the House, with the proper sense of responsibility, to reject it.
Lord Lloyd of Berwick
My Lords, I am very grateful for the Minister’s careful response to this amendment. I am also very grateful to all those who have spoken in support of it. Of course, I am also very aware of those who have spoken against it. Even if I had thought that we would win tonight, I would not want to divide the House. It would be highly irresponsible to make a snap decision on such an important and difficult area as child protection.
The one thing that the debate has established beyond any doubt is that there is a problem here that needs to be solved urgently. As I have said from the very start of this amendment, this should be a non-party matter. It is purely a matter of law reform. That is why I was so very glad to hear the noble Baroness, Lady Hughes, suggest in her excellent speech that there is an opportunity between now and Third Reading to hold some sort of discussions on an all-party basis to see whether there is some way in which we can find a way forward which would satisfy all the lawyers here as well as the public at large. If we can find such a way forward, that would be by far the best solution. If we cannot, I respectfully suggest to the Minister that this is a case for a reference to the Law Commission for an urgent hearing about what is best to be done in this situation.
Lord McNally
As I said before, I am worried. We have very strict rules about bringing matters back at Third Reading, and I do not want to lure the noble and learned Lord into thinking that by withdrawing he can be guaranteed a Third Reading debate. On the other hand, the point he has just made may be a way forward on this. I do not know. I swear I have never said this before across the Dispatch Box, but I am not a lawyer. If the lawyers can help us in this, we will consult, but I do not want to inflict on the House a Third Reading debate of this complexity, which would not be very popular with the House.
Lord Lloyd of Berwick
I fully understand and accept the position which the Minister has taken. It would be admirable if we could organise some sort of cross-party discussion, perhaps with outside assistance. Lawyers need assistance from social workers to find out the best way of finding a solution. If we can find one before Third Reading, so much the better; if not, then clearly it ought to go to the Law Commission for a quick hearing. I beg leave to withdraw the amendment.
Children and Families Bill
Lord McNally Excerpts(10 years, 6 months ago)
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Baroness Howarth of Breckland (CB)
My Lords, I know that David Norgrove was very concerned that judges spent quite a considerable time reviewing care plans and that might well delay looking at the future of children. However, I cannot see why this aspect should not be looked at. When the judge is looking at the placement of the child before him, he must look at the whole family, the parental position and what is going to happen to the siblings. Although I understand absolutely why David Norgrove felt that the local authority should be the one looking sensibly at the care plans, I do not at all see why the court should not look at the sibling placement.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, I am very grateful to all noble Lords who have contributed to this debate. The noble Baroness, in introducing the amendment, referred to the strength of feeling expressed when Part 1 of the Bill was discussed and how important it is that the court is able, where appropriate, to consider the arrangements that the local authority might make for a child to live with his or her siblings. My noble friend and I will consider the points made both today and earlier in the Bill.
As was discussed in the other place, the purpose of Clause 15 is to focus the court, in its consideration of the local authority care plan, on those provisions which set out the long-term planning for the upbringing of the child; for example, whether the child is to live with a parent or other family member, to be placed in foster care or to be adopted—the permanence provisions. The court is not required to consider the remainder of the plan. The clause is based on the findings in the family justice review that, driven partly by concerns over the quality of local authority social work, courts can spend a long time scrutinising the details of local authority care plans for children before making care orders. In many cases, court scrutiny goes beyond what is needed to determine whether a care order is in the best interests of a child. This can lead to unnecessary delays and contribute to the lengthy duration of care cases.
As was also highlighted in the other place, details of care plans are not set in stone and often change over time in response to a child’s changing needs and circumstances. In 62% of cases in a recent study, the care plan scrutinised by the court was not carried out, due to changing circumstances. Given this likelihood of change, the local authority, rather than the court, is better placed to consider the detail of the care plan.
I appreciate the concerns expressed by noble Lords about sibling placement, following the debate in the other place. I want to clarify that if the permanence provisions of a particular plan deal with arrangements relating to a child’s sibling—for example, if the plan is for the child to be adopted along with his sibling—the court will be required to consider those arrangements as part of the permanence provision. I will look at the statistics cited by the noble Baroness, Lady Hughes, about loss of contact and, in addition, I make the point that she anticipated: there is nothing in the clause that prevents the court looking at any other aspect of the plan it considers necessary to make the order.
I understand the point made by the noble and learned Baroness, Lady Butler-Sloss, with her vast experience and from the evidence heard by her committee, about the grief and stress that can be caused to siblings by being parted. It is a matter that needs to be looked at. I re-emphasise that nothing in the clause affects the duty of the local authority, when deciding the most appropriate placement for the child, to ensure, as far as reasonably practicable in each case, that the placement enables the child to live with any sibling who is also being looked after by the local authority.
As has been pointed out, concern has been expressed and some statistics have been advanced for us to ponder. We will look at this again in those terms and in the context in which David Norgrove made these recommendations. There is a danger that if we have too many belts and braces in the process, we will lose the very advantages of speed that we are trying to bring in and which are also in the best interests of the child. I hear what the Committee has said and my colleague and I will consider that between now and Report. In those circumstances, I would be grateful if the noble Lady would withdraw her amendment.
Baroness Butler-Sloss
My Lords, with the leave of the Committee, I shall speak in place of the noble and learned Lord, Lord Mackay of Clashfern, at his specific request. He was here on Monday, but he was just not reached and is unable to be here today. The noble and learned Lord is making a plea for the Family Law Act 1996. As Lord Chancellor then, he was responsible for its introduction in the House of Lords. A considerable part of that Act has not been commenced, but Governments since then have left it on the statute book.
Clause 18 of the present Bill repeals the whole of that which remains of the 1996 Act. The noble and learned Lord has said that since he was involved he felt diffident about raising the issue, but then he learnt that at least some of those concerned with family law did not know that the Act was to be repealed. He felt that he had a responsibility towards those who had supported him to point to this development. Perhaps the Committee will forgive me if I read the noble and learned Lord’s principal concern. He has written that,
“with no-fault divorce which I advanced on the basis that to require a spouse seeking divorce to make allegations about the other spouse which would not require to be proved was not conducive to the vital task of promoting good relations between them for the sake of the children”.
In other words, “no-fault divorce” means that the parties do not rake up unpleasant things about each other which can only be bad for the children. He adds:
“So far as I know its retention on the statute book has done no harm”.
I would add that Part 1 of the Family Law Act 1996 sets out what I do not believe we get anywhere else; that is, the principles of Parts 2 and 3 of that Act. It states that,
“the institution of marriage is to be supported … that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage”—
which is admirable—
“that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end … with minimum distress to the parties and to the children affected”.
It goes on like that. It sets out in about one page the general principles of good behaviour between parties to a marriage that has broken down. It is sad that there are issues of reflection and consideration before the divorce.
One might say that all that is old hat. Marriages go on, thank goodness. The majority of people who live together do not get married but a lot do. To have these good principles on the statute book has done no harm and will do no harm. It will at least make available to people the desirable end to those marriages that have broken down, and make some effort to remind them that they should try to minimise distress to everyone, particularly their children. I might add grandparents to that. It is sad that it is apparently necessary, under Clause 18, for this Act to be repealed, which is the purpose behind the noble and learned Lord, Lord Mackay of Clashfern, opposing that it should stand part of the Bill.
Lord McNally
My Lords, one of the perils of being a Minister in this House is that the continuity that is one of its merits means that changes to decades-old legislation may mean that we find the author still with us, alive and kicking. We saw something similar on Monday when noble and learned Lords wanted a rematch of decisions made by Law Lords some decades ago. However, that does not mean I take lightly the point made by the noble and learned Lord, Lord Mackay. After our Monday sitting, I had a long conversation with Sir James Munby on Tuesday. I mentioned the point raised by the noble and learned Lord. Sir James was somewhat wistful about the ambitions of the noble and learned Lord to bring in the concept of “no-fault divorce”, which had not progressed as much as the authors of the Bill at that time had intended.
I have listened with great care to the points made on behalf of the noble and learned Lord, Lord Mackay, by the noble and learned Baroness, Lady Butler-Sloss. As I have said, I have the utmost respect for the position of supporting the principle of “no-fault divorce”. I acknowledge the expertise of the noble and learned Lord in this area and I know that when he introduced the Family Law Bill in this House in 1995, it was a Bill very close to his heart.
I fully understand that the provisions of Part 2 were intended to save saveable marriages and reduce distress and conflict when it was inevitable that a marriage would need to be brought to an end. While Part 2 retained as the ground for divorce the irretrievable breakdown of the marriage, it would, if implemented, have removed the need to establish irretrievable breakdown through one or more facts. I understand why proponents of no-fault divorce believe that the approach in Part 2 would have helped to reduce conflict and acrimony.
However, there are two separate issues here. The first concerns the principle of no-fault divorce in Part 2, and the second concerns the information meeting and other provisions of Part 2 which were an integral part of that policy. The Government in 2001 concluded that the provisions were unworkable, would not achieve the objectives of saving saveable marriages and reducing distress and conflict, and should be repealed. It is that second issue that led us to include Clause 18 in the Bill.
The decision to repeal Part 2 was made in principle long ago on the basis of extensive academic research by the University of Newcastle. The research looked at six models of information meeting that a party to a marriage would have been required to attend as the key first step in initiating a divorce. Part 2 is built around that initial mandatory information meeting. The research concluded that none of the six models of information meeting tested was good enough for implementation nationally. For most people, the meetings came too late to save marriages and tended to cause parties who were uncertain about their marriages to be more inclined towards divorce. While people valued the provision of information, the meetings were too inflexible, providing general information about both marriage-saving and the divorce process. People wanted information tailored to their individual circumstances and needs. In addition, in the majority of cases, only the person petitioning for divorce attended the meeting. Marriage counselling and conciliatory divorce all depend on the willing involvement of both parties.
Repeal of Part 2 has been awaiting a suitable legislative opportunity. The Children and Families Bill now provides that opportunity. Repeal was part of the draft Bill published for pre-legislative scrutiny in September 2012. None of the written responses opposed repeal of Part 2.
The Government have introduced separate measures in Clause 10 to make it compulsory for an applicant in certain family proceedings first to attend a family mediation, information and assessment meeting—I realise we will be having further debates about that on Report. That provision has some similarities with the information meeting provision for divorce in Part 2 and will, we intend, address disputes about children and finances.
Mediators who conduct the MIAM will check with the parties whether they wish to save their relationship, as well as discuss ways to resolve a relevant family dispute with the minimum of distress, including, in particular, arrangements for any children. However, Clause 10 addresses disputes between both cohabiting and divorcing couples.
Repeal of Part 2 is a long-standing commitment to Parliament. There is no prospect of Part 2 being implemented. Therefore Clause 18 should stand part of the Bill.
Baroness Butler-Sloss
My Lords, the noble and learned Lord, Lord Mackay of Clashfern, wanted this matter raised, but he does not wish it to be pursued any further.