Children and Families Bill

Baroness Hamwee Excerpts

Monday 9th December 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I start where my noble friend the Minister started by referring to the series of meetings that he and his colleagues arranged as well as the many papers—I cannot remember what term he used, but it was a lot of paper, which was welcome—that we received during the period starting before the end of Committee. I do not think that I have ever known so many meetings as he was able to arrange, but they have been extremely helpful. Because we are on the first day of another stage of the Bill, I need to declare interests as patron of the Intercountry Adoption Centre and of PAC and as a president of London Councils.

It will not be a surprise that I support and welcome this amendment. I thank the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth of Breckland, for their support in Committee, the officials who struggled with the technicalities of the not-very-easy current provisions and, most of all, the Minister, who dealt with the matter with care and, if I may say so, very effective pragmatism. I know that I pass on the thanks of the British Association for Adoption and Fostering and the Law Commission, both of which were involved, and of the individuals who have campaigned for this change. I have been able to show to the Bill team the very grateful and excited emails that I have had from the lady who has led the campaign. She and those with whom she is in touch can see that they will be able to answer questions about their own heritage, medical issues and indeed their very identity.

I understand the Government’s caution to ensure that the extent of the new rights is appropriate, and the Minister has given us an assurance as to children and grandchildren being the minimum within the prescribed relationships. I hope that he can assure the House that the consultation on this will take place very soon after Royal Assent and that the necessary regulations are expected to follow very speedily so that the anomaly that has been identified can be corrected with the minimum of delay. I thank him and his colleagues very much indeed.

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest at the beginning of the Report stage as a governor of Coram and as a patron of, among others, BAAF, PAC and Childhood First.

I start by saying that I think that this is a good Bill, though it needs some improvements. What is absolutely splendid is that in certain places the Minister has listened with great care and, like the noble Baroness, Lady Hamwee, I am extremely grateful to him, not only for a number of very useful meetings on this particular amendment and indeed others, but also for the outcome. I am really very grateful indeed and look forward to that being a source of relief to a number of families.

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[Baroness Butler-Sloss]

My Lords, I said that this was a good Bill; none the less, there are certain aspects of it with which, respectfully, I do not agree.

This amendment relates to comments at the beginning of the pre-legislative scrutiny report by the Select Committee on Adoption Legislation, which I had the honour of chairing. It was the unanimous view of the members of that committee that, compared with the previous position, the Government had gone too far in the opposite direction. Section 1 of the Adoption and Children Act 2002 lists eight considerations applying to the exercise of powers. The previous Government had included subsection (5) as a separate subsection. It reads:

“In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background”.

Instead of being one of a number of considerations, that was out front. The result was that social workers, who were dealing with what is properly called the “ethnicity question” up front, were refusing to place children for adoption with parents who were not of the same colour, the same persuasion or whatever, and this was impeding the very natural and highly to be commended desire of this Government for adoption to move speedily.

The Government therefore decided to take Section 1(5) out of the Adoption and Children Act 2002. So far, so good, but now they have gone too far the other way because it does not appear anywhere. The nearest you get to it is Section 1(4)(d) of the Adoption and Children Act 2002, which reads,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”.

The Government’s view is that that covers the ethnicity point but I do not share that view. The evidence that the Select Committee received was that, whereas social workers paid too much attention to that consideration when it appeared as a separate subsection, there was now a very real danger that they would not pay any attention to it at all. Matters which are of considerable importance to a child—their religious persuasion, racial origin and cultural and linguistic background—have to be taken into account. They must not be permitted to frustrate a proper adoption if the circumstances of the adoption come outside one of those matters but they must be included in the checklist of the various points to which the social workers, the adoption agency—but usually the social workers—and the court must have regard, and removing them presents a problem.

I have had various meetings with the Minister and I even gave him a cup of tea this afternoon before we embarked on what is going to be a very long evening. However, I am afraid that I am not persuaded by his suggestion that there should be statutory guidance. Having it on the face of the legislation means that it has “an importance” but not “the importance”, whereas we all know that, although statutory guidance is important, it may not necessarily be read as carefully as it might be. However, it cannot be entirely ignored if it is in primary legislation. I share the Select Committee’s thought, which was to tuck it in neatly into subsection (4)(d), so you would read it as,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”.

This would then include,

“religious persuasion, racial origin and cultural and linguistic background.”

It would not be too prominent, but it would be there. For those reasons I wish to pursue this amendment, and I beg to move.

[Baroness Hamwee]

My Lords, I have the other amendment in this group. Like the other members of the Select Committee, I agreed that certain characteristics of a child for whom adoption was sought should not be highlighted as if they overrode everything else. Like the other members, as the noble and learned Baroness has said, I was concerned that the wrong message might be taken from new legislation. In taking out a provision for due consideration—because that is all it is, not an overriding consideration—to be given to the child’s,

“religious persuasion, racial origin and cultural and linguistic background”,

Parliament would be saying that no consideration should be given. Like the noble and learned Baroness, I fear that guidance would not be enough in that situation.

I do not think we said this in Select Committee, but I am fearful about this. England would not be in the same situation as Wales. Wales will be keeping this wording. The fact that adoption is a devolved matter does not answer the concerns that I have. It would be seen as a very significant distinction. This swinging political pendulum has got to end up in the middle. As the noble and learned Baroness has said, it is not an overriding issue, nor something to be entirely discounted. In Committee I said there had been oversensitivity to what some parts of the media regard as political correctness. I know that the Minister’s concern is that minority-ethnic children are being short-changed. Sadly, the cohort that is being short-changed is the many children from all sorts of backgrounds who are waiting for adoption. The problem is the imbalance between their numbers and the numbers of prospective adopters. To adopt, one needs to be sensitive—to be understanding of the importance of religion, of racial origin, of cultural and linguistic background. It is not a matter of “being the same as”. People who are the same may not understand, and may not be sensitive enough. But that sensitivity, that openness, addressing issues which may arise—that is the matching which is important, not the direct same characteristics.

As the Government were not been persuaded in Committee, a different approach might appeal. My amendments would take out the references to age and sex so that the court and the agency should have regard to the child’s background and characteristics, because those cover everything. The Minister has said that background and characteristics must include ethnicity. He said that is a matter of plain English. Age and sex are also characteristics, so I hope that my plain English amendment might be helpful.

[Baroness Perry of Southwark (Con)]

My Lords, pendulums do swing; it is very difficult to find a middle way. We are all agreed that it was wrong that for a period of time there was too much emphasis given to a child’s racial and religious background, as the noble and learned Baroness has said. That has resulted in appalling waiting times for children of some ethnic-minority backgrounds, who wait to be adopted for three or four times longer than white children—their contemporaries—do. That is not acceptable in our society. But we are in danger of swinging the pendulum a little bit back in the wrong direction by trying to put in the words of,

“religious persuasion, racial origin and cultural and linguistic background”.

I am of the view, which I understand is also the Minister’s view, that any sensible person trying to interpret the “background” would include racial, religious, cultural and linguistic origins. There is no way that you can look at someone’s background without taking those into account, otherwise the word “background” is meaningless. What else could it possibly mean?

I turn to the amendment of the noble Baroness, Lady Hamwee. I have a lot of sympathy with her wishing to take out the racial, cultural and linguistic elements as put forward by the noble and learned Baroness, Lady Butler-Sloss, but I wonder whether we have not taken too much out there. It is a question of the pendulum swinging in all directions. Given all the various views that there are here, it seems to me that we all want the same thing: we want children of ethnic-minority backgrounds to be able to be adopted as quickly as their contemporaries; and we also want all their background to be taken fully into account. Given the efforts we are making to get the pendulum to hang in the middle, I think the Government have got it just about right.

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[Baroness Hamwee]

My Lords, I have Amendments 4A, 4B, 4C, 4D and 6A in this group. They have already been trailed. When I first became aware of a proposal for the Secretary of State to issue directions about local authority adoption functions, I shared the alarm which was expressed, because I am pretty unreconstructed when it comes to local authority powers. On the other hand, having heard some of the issues which seem to lie behind problems with recruiting adopters, during the debates that took place during the work of the Select Committee, at one point I wondered whether adoption services should be nationalised. My pendulum has swung back to the middle.

I am reassured from what the Minister has said that the clause is not about failure or the underperformance by individual local authorities; it comes about because of concerns about the system, and systemic underlying problems. The amendments in my name and those of the noble Baroness, Lady Eaton, the noble Viscount, Lord Eccles—also members of the Select Committee—and my noble friend Lord Storey, flow from that. They are aimed at building on and improving what we are presented with in the Bill. It has been voiced again today. What has very much exercised noble Lords is ensuring that Parliament is not sidelined. I realise that a direction under paragraph (c) would be very different from directions under paragraphs (a) and (b) of new subsection (3), and I will come back to that in a moment.

Our amendments would turn directions relating to all local authorities into an order requiring the agreement of both Houses through the affirmative procedure. That would mean the Minister explaining the position, and both Houses debating it with an order not to be made before March 2015. The parliamentary timetable suggests to me that it is very unlikely an order would be made two months before a general election. So I was glad to see the Government Amendment 6 and even more pleased when the Minister told me that he wanted to add his name to our amendments but was too late for the print of the Marshalled List.

The Select Committee said that local authorities should have the time,

“to develop viable and achievable alternative proposals.”

We see that they are already doing so. We heard in the Committee of successful structures in the “tri-borough arrangement” as it is called in London—the three boroughs—and with three local authorities in the north-west. I understand that there are now probably five groupings involving 12 local authorities, which return their data together and are coming together in new structures.

The noble Baroness talks about the levers for change, whether what we may have will be enough, and whether it needs a heavy hand. I do not think that this is proposing a heavy hand. But if an order is proposed by the Secretary of State, as I see it—and I hope that the Minister can confirm this—it would not be a lid, perhaps here a portcullis, coming down. It would be a point in a sequence development of work, a transitional point which could be, and I hope if necessary would be, tailored as to which of the functions in new subsection (2) was brought into play. It would not be necessary to make an order dealing with all the functions in new subsection (2). So it is not the nuclear option, which I at first understood it potentially to be, or as it has been described.

A direction under new subsection (3)(b)—I confess that I had not initially appreciated how this might differ from an order under a statutory instrument—would allow for a lot more continuing work, after as well as before a direction with the local authorities concerned, which is a much more flexible way of working. It has been described to me as a quality improvement measure, with the possibility of collaborative development of the detail of the direction before it is given. Thinking about how that has worked on other subject areas within child protection and children services work, I can see that would work well. That leaves me unable to support Amendment 4.

The Government have already given commitment to giving notice to a local authority before using the powers in new subsections (3)(a) and (3)(b). So there would be an opportunity for that way of—I am sorry, I hate the word—iterative working, a development and refinement process. The steps which have already been taken since this debate started earlier in the year, or at the end of last year, when the Government made their announcement, have been constructive and productive, with the adoption form grant, the adoption register, the adoption leadership board and the equalisation of fees between local authorities and voluntary agencies. I mention voluntary agencies because it will be essential to work with the voluntary sector. Capacity and culture issues are both important. They are not going to change overnight. But the clause, as it would be amended by our amendments, allows more than adequately for this.

I hope that the directions in new paragraphs (b) and (c) will never be used, because it will not be necessary. I hope, too, that the Minister can confirm that over-enthusiasm, as the noble and learned Baroness has called it, would not mean that the paragraph (b) direction would be applied to all local authorities. That seems to me to be something that would be very open to challenge, given the rest of the structure of the clause.

I see why the Government feel that they need to have reserved powers, operated as I described, and that means that I cannot support Amendment 6. I hope that the House will feel that Amendments 4A to 4D and 6A are the way forward. I am comfortable with the logic of this, and I am usually over-logical about things. It is not heavy handed. It might almost be delicate—I will not go quite as far as to claim that—but it is a way forward.

[Lord Storey]

My Lords, I cannot keep using the expression that I am a new person to your Lordships’ House, but I am still on a big learning curve, and I like to put into simple terms some of the language that is used.

When I saw this clause, I remembered that something like 84% of adoptions last year were carried out by local authorities and that, as we have heard, the majority of them do a fantastic job. That is recognised by the voluntary sector and, equally, the local authorities realise how important the voluntary sector is. When the Bill first came to your Lordships’ House, the voluntary sector, quite rightly, said, “Look, we could not cope if you took it all away from local authorities. We would not be able to do that”.

At the time, it seemed right that the Government pointed to the fact that some local authorities had an appalling track record. As I have said, it is a very small number, but some had an appalling track record. Indeed, the Local Government Association would be the first to recognise that. So it seemed absolutely crucial that the Secretary of State should have the power, if local authorities were underperforming and were not prepared to work together and co-operate, to take that responsibility away from them. I see the logic and the importance of that because, at the end of the day, we are talking about the children. However, I did not see the logic of having the power to take the responsibility away from every local authority—that seemed plain daft to me—given the expertise and commitment that local authorities have and the amount of work that they do. I was therefore delighted when the Minister tabled an amendment which ensured that nothing could happen before March 2015. But that still means, unless I have misunderstood it, that the Secretary of State could say in March 2015—although, as my noble friend Lady Hamwee said, it would be two months off a general election—“We are going to do this, and that is what we are doing”. That would not be in the best interests of adoption and children.

If in the mean time the Government work with local authorities and the voluntary sector and different structures come together with different ways of operating—and if it is decided that tri or quad groups working together is the structure that we want—that is great. Whatever structure is arrived at, the Secretary of State should come to Parliament and both Houses should be able to say yes to it. I was not used to the phrase “affirmative procedure” in the amendment. If the Minister feels able to support Amendments 4A to 4C, as his comments suggest, that would be a result with which we could all be happy.

I do not share the concern that the Secretary of State might use Amendment 4B to take away the responsibility from boroughs and metropolitan bodies. That would not happen in the timescale because, as we have heard, 84% of authorities carry out adoption. However, if some local authorities are letting down children or the adoption service, in extreme cases the Secretary of State would have that power. If these clauses and amendments are accepted, it will mean that local authorities have come to the table and discussed these matters even more rapidly with the voluntary sector. I welcome the work that the Minister has done in bringing those people together.

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Moved by

[Baroness Hamwee]

4A: Clause 3, page 2, line 33, after “requiring” insert “one or more named”

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Moved by

[Baroness Hamwee]

4D: Clause 3, page 2, line 43, leave out from beginning to end of line 2 on page 3

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Moved by

[Baroness Hamwee]

6A: Clause 3, page 3, line 2, at end insert—
“(2) In section 140(3) of that Act (statutory instruments containing subordinate legislation that are subject to the affirmative procedure), before paragraph (a) insert—
“(za) under section 3A(1A),”
(3) The Secretary of State may not make an order under subsection (1A) of section 3A of the Adoption and Children Act 2002 (as inserted by subsection (1)) before 1 March 2015.”

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[Lord Warner (Lab)]

My Lords, I support my noble friend’s Amendment 9, which puts contact between siblings in the Bill. I apologise to the House that I was unable to take part in this Bill’s proceedings in Committee because I was engaged on the Care Bill. However, I was on the Select Committee on Adoption Legislation and I echo the points made by the chairman of that committee, the noble and learned Baroness, Lady Butler-Sloss.

On the basis of my six years as a director of social services, I have a general point about why the Minister should concede on Amendment 9. While I was director, the Children Act 1989 was passed. That was a classic example of Parliament saying in a Bill that decisions about children should be taken on the basis of the best interests of the child. In the overwhelming majority of cases where siblings are separated, the best interests of the child are to maintain that contact. Sibling contact is often a private child’s world, which is not always well observed by adults, whether they are social workers or other adults involved in that child’s life. Maintaining that contact is overwhelmingly important to children. My noble friend has shown that the option of putting it in guidance and relying on best practice has had a good run for its money and it has not worked. We should return to some of the ideas in the Children Act 1989 and put in the Bill the obligation to help maintain contacts between siblings when they are separated. These contacts are in the best interests of the children and very important to them. It costs very little to put that in the Bill.

[Baroness Hamwee]

I support Amendments 9 and 10. When the noble and learned Baroness was talking, I remembered that when she was meeting children—she shared with the House some of their moving comments—I was in the next room meeting the carers, mostly social workers. When we talked about contact generally, not just with siblings, several of them said that the problem lay in adopters not wanting to know, preferring to see their children as part of the new family and wanting to leave the past behind. Therefore I take very seriously the point that she and other noble Lords have made about the importance of having this in the legislation. Guidance has not been enough and I do not see that it will be enough.

In support of Amendment 10, in Committee the noble Baroness, Lady Young, gave such an important explanation of the need to know one’s identity that, without wanting to embarrass her, I feel it should be framed. It said a lot about the specific issue about which I was concerned, about descendants of adopted people and, as she has just mentioned, the need of older adults to know about their heritage and background. What she has said seems in line with adoption practice and with Amendment 1, which we have agreed. It is an important way to move practice forward though statute.

[Baroness Northover (LD)]

My Lords, I thank noble Lords for putting down these amendments and for their commitment in this area. We focus here on three areas that greatly impact on the lives of children in care and care leavers. I thank the noble Earl, Lord Listowel, for his thanks to my noble and honourable colleagues. Noble Lords will note that my honourable friend the Minister for Children and Families is at the Bar of the House. We appreciate his presence.

I start with the important issue of children who return home from care, addressed by the amendment of the noble Earl. I thank him for his acknowledgement that support for those returning home is a key priority for the Government. We agree that much greater attention is required to ensure that both the statutory framework and local practice are improved significantly. We are working closely with an expert group, including organisations such as the NSPCC, which are making an invaluable contribution to this work. I hope noble Lords will be reassured that we are strengthening the statutory framework for voluntarily accommodated children since we believe this is particularly weak. We are exploring whether the current statutory framework needs to be strengthened for other children who return home, including those who were previously on a care order and 16 and 17 year-old care leavers. We are also working to improve practice for all children who return home, whatever their legal status while they are in care or when they return home.

The noble Earl raised the issue of children on interim care orders. We are aware that the Alliance for Children in Care and Care Leavers has raised concerns about children who return home following an interim care order, and whether the new proposals to strengthen the statutory framework will apply to this group. We shall continue to work with the expert group and others to explore how to ensure that we improve the statutory framework where necessary for all children regardless of legal status. I hope he finds that reassuring.

The noble Earl and other noble Lords asked about personal budgets. The current statutory framework provides sufficient flexibility for local authorities to provide personal budgets if they think this is the best way to meet a family’s needs. We do not think that it would be appropriate to assume that this will be necessary in all circumstances. Therefore, we believe that decisions about financial support and how this is provided should be taken on a case-by-case basis. I hope that he is reassured that it is possible to give that kind of support.

I can assure the noble Earl that we shall continue to work with the NSPCC and other voluntary sector organisations through our expert working group as we develop and implement our programme of work. We should be delighted to meet him to discuss matters further. We know there is a long way to go, but we are committed to ensuring that all children receive the support they need to return home to their families where this is the right way to secure permanence for them. I hope that in due course the noble Earl will be content to withdraw his amendment.

Amendment 9 on sibling contact was introduced by the noble Baroness, Lady Jones, and is supported by other noble Lords. We are in complete agreement that contact between siblings is of great importance to children in care. I hear what my noble friend Lady Hamwee and others have said on this. We take this very seriously. We believe that the concerns that noble Lords have raised are an issue of practice and are best tackled through strengthening statutory guidance, improving local authority practice and monitoring impact through Ofsted reports. I noted the comments made by the noble Baroness, Lady Hughes, when we were discussing this in the round table about the difficulty that existed in taking this forward before.

We are therefore making our expectations of local authorities clearer in statutory guidance. Noble Lords will be well aware that statutory guidance is not merely advice; local authorities must comply with statutory guidance unless there are exceptional reasons which justify a departure. The noble Baroness, Lady Jones, asked how we will ensure that this makes a difference, which is the crux, and which was highlighted by her noble friend in earlier discussions. We will need to monitor the impact of our revised guidance and our planned programme of work in the short and long term. The noble Baroness is right about that. It must make a difference. The revised Ofsted inspection framework includes specific wording on sibling contact and will be an area that it will look at in its inspections of children’s services. We will use its reports to highlight areas of good practice and address areas of poor practice where the need arises.

Influenced by our discussions in Committee, we have produced a revised draft of our statutory guidance which emphasises the key points raised by noble Lords. We very much appreciate the experience that they fed in in Committee. These changes include a specific requirement for the care plan to set out arrangements for the promotion and maintenance of contact with siblings and for consideration to be given to whether staying-put arrangements may be beneficial to maintaining sibling contact when an older child leaves care. I thank the noble Baroness, Lady Jones, for her thanks to us for incorporating these points.

We appreciate the comments from our discussion at the round table last week. They were very helpful. We appreciate that there is further work to do. We are very keen to involve noble Lords who are interested in taking this work forward in coming weeks to ensure that the guidance is as clear and robust as it can be. Clearly the noble Baroness, Lady Hughes, with her formidable experience as a former Children’s Minister, which she manifested at our discussions the other day, would be very important to that.

We want to make sure that the changes we make to the statutory guidance as a whole encompass all the necessary changes and that we have had sufficient time to consult sector partners, consider our wording properly and check its consistency with our other guidance. Taking this into account, we will progress with publishing this guidance as soon as possible in the new year.

When the guidance is published, we will work through independent reviewing officers and others to improve local practice. The revised Ofsted inspection framework includes specific wording on sibling contact, so we will monitor Ofsted reports on the impact that we are having.

I hope that noble Lords will recognise that we share their very real concerns and will work with us to take forward practice most effectively and that therefore the noble Earl will be willing to withdraw his amendment in due course.

Amendment 10 was tabled by the noble Baroness, Lady Young. It is on access to records for care leavers. Having considered the issue further following the debate in Committee, we recognise that we need to improve the statutory guidance in this area. We thank the noble Baroness for her involvement in this. She gave her time very generously in facilitating meetings with officials and voluntary organisations. They have been very helpful for the department as we have drafted our new guidance. We would like to thank the voluntary organisations—the Care Leavers’ Association, BAAF and Barnardo’s—which took part in the meetings, for sharing their knowledge and expertise in this area. We especially thank the noble Baroness, Lady Young, for making sure that all these groups were brought together so that we could hear the case that they needed to make.

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[Baroness Hamwee]

My Lords, I have to say to my noble friend that in 2012 I was not entirely persuaded by a similar amendment. I made supportive comments but wondered whether it was right to be pushing it at that stage—indeed, the noble Lord did not do so. I have changed my mind. I realised that time moves on and the fact that I am not going to repeat a number of points that have been made does not mean that I do not agree with them; I agree with them very much indeed.

It is difficult enough for trafficked adults—or, indeed, other adults who come up against the state—to deal with multiple agencies. For a traumatised child it is unbelievably more difficult. The distrust of state authorities has been mentioned and it seems that retrafficking happens because very often the trafficked child knows only his or her traffickers. They have been taught to trust the traffickers, who have said, “If there is a problem, here is the phone number. You contact us”. Of course that leads to the child leaving whatever care they are in, going back to the traffickers and being retrafficked.

Consistency and constancy have been mentioned. I want to talk about authority, whereby a guardian has authority not just to hear but to speak for the child—to contribute to the discussions and to have to be listened to by the others who are taking part in discussions and moving towards decisions. That legal recognition is particularly important, for instance, in dealing with immigration officers who are handling a child’s asylum case, in the national referral mechanism, and in instructing a solicitor. I say that from my experience; I have not dealt with anyone who has been trafficked but as a solicitor taking instructions you have to hear the instructions from the person who is entitled to give them. I have been in this situation with clients in many different fields where I am told, “That’s what so-and-so wants”. I need to know it from that person. You cannot assume it unless the person with clear authority gives the instruction. So the statutory power, the statutory authority, and the legal status are very significant.

Finally, I want to make a rather hard-headed point. You have to support victims and survivors of this sort of situation to enable them to be good witnesses when giving evidence. Unless we can achieve that, it will be that much harder to get convictions. My hard-headed point is that it is in the interests of attacking this despicable trade that I also support this amendment.

[Baroness Northover]

My Lords, this debate has made very clear the commitment across the House to improving the support received by trafficked children. My noble friend Lord McColl has made a very powerful case once again. We recognise that not enough has been done and that we must do more. I pay tribute to my noble friend Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and others for their determination to ensure that trafficked children, who are so very vulnerable, are properly protected. Noble Lords have made their concern extremely clear. We agree that these children are indeed among the most vulnerable and it is clear from what noble Lords and others have said that they are not being supported as they should be, so how is this best achieved?

We remain concerned that the introduction of guardians for trafficked children, alongside those persons who should already be working in the interests of the child, is not the most effective way to tackle the local problems that are clearly manifest here. Where local systems are not working as they should be to support the best interests of trafficked children, we need to address the causes of those problems. Others with extensive experience of the needs of trafficked children agree. Children and Families Across Borders, an organisation with considerable expertise in this area, has told us that introducing guardians would not improve the inadequate service that some trafficked children receive. Instead, they believe that a clear commitment to, and strong focus on, professional development by local government employers and others is required. This would help to improve practice and ensure that social workers understand the particular needs faced by trafficked children in their care. It is not clear that appointing another individual to speak for a looked-after child or to help them navigate the care system is the answer. Central to the role of a social worker is ensuring that the child’s best interests are protected. If that is not happening then that failure should be addressed. Introducing guardians could actually result in making things worse, with other professionals thinking they do not need to concern themselves as much about a trafficked child because their guardian is looking after them.

I note that my noble friend Lord McColl mentioned the variability of support and the best practice that can be seen among some social workers. He pointed to other cases of very poor practice and we fully agree that these must be tackled. We recognise that local authority performance with regard to trafficked children is clearly inconsistent. To address this inconsistency, we have proposed new regulations so that, when a trafficked child comes into the care system, the crucial information that they have been trafficked must be recorded on care plans. Under these new regulations, local authorities would be required, in planning and reviewing care for a trafficked child, to consider the specific and complex needs that may result from the experience of having been trafficked. This requirement would also extend to pathway planning for a trafficked child when they cease to be looked after. Social workers should support trafficked children to access mainstream and specialist services and this should include accompanying them to meetings with other professionals, as my noble friend Lord McColl highlighted. We will make this clear in the proposed new statutory guidance. To underpin the proposed new regulations regarding trafficked children, we have, as I say, drafted new statutory guidance. This sets out our expectations of how local authorities should go about providing the required support and we would welcome noble Lords’ views on how to make this draft guidance stronger. As noble Lords will be well aware, statutory guidance is of course not merely advice that local authorities can choose to ignore as they please. They must comply with statutory guidance unless there are exceptional reasons that justify a departure.

When they first enter care, trafficked children are particularly vulnerable, as noble Lords have made clear. They might not initially recognise that they are victims of a crime, or might believe that their best interests lie with their traffickers. The first hours and days are crucial in protecting a trafficked child from going missing. The new statutory guidance describes some of the steps that local authorities should take to protect against this risk, such as temporarily removing their phones to ensure that they are not in contact with those who can do them harm, providing 24-hour supervision, or employing previously trafficked children to assure the victim that they are safest in local authority care. The guidance provides a clear definition of a trafficked child and describes steps that should be taken when a child is identified as having been trafficked. This vital role is one that local authorities, with partners including the Home Office and police, fulfil—or should fulfil—as part of their child protection duties.

The noble and learned Baroness, Lady Butler-Sloss, talked about missing children. Some of the things that I have just said are intended to try to stop those children going missing. However, we have also put specific advice in our revised guidance on trafficked children, including how to prevent them going missing and how to support them when they are found.

Children who have been trafficked into this country from overseas may require specialist support in dealing with immigration questions or proceedings, as noble Lords have made plain. The amendment says that guardians will assist the child to access legal representation, appointing and instructing a solicitor where necessary, and my noble friend Lady Hamwee picked up the issue of legal representation. However, independent reviewing officers should already ensure that any child in their care has access to the appropriate legal support. In our new statutory guidance, we will now go further and require that such support should be provided by a suitably qualified solicitor or immigration adviser. Any immigration advice or legal support would be in addition to the child’s right, as a looked-after child, to independent advocacy.

Part of making children feel safe when they have been trafficked from overseas is ensuring that they understand their situation and the support provided to them. Our new statutory guidance will require that, where interpreters are required, they should be trained to understand the particular risks faced by trafficked children. Helping children to overcome cultural or language barriers so that they can express their wishes and feelings is a role that is already carried out by independent advocates. The new statutory guidance notes the importance of commissioning specialist advocacy services to provide this support.

The noble Baroness, Lady Lister, brought up the discussion that we had in Committee about Scotland. I was very interested in the fact that Scotland has guardians, and that is why I asked how it had worked out. She probably knows that the Scottish guardianship system is much smaller than would be required in England because it covers just 80 unaccompanied asylum-seeking children. Scottish guardians essentially fulfil the role played by independent advocates in the English system but with specialist immigration skills. Our proposed statutory guidance requires that, where a trafficked child requires specialist immigration advice, it should, as I said, be provided by a solicitor or adviser with the relevant competences.

I thank the JCHR for its letter, to which I shall be responding, and for its engagement in this matter. It highlighted several aspects of the Scottish model for consideration in England, as the noble Baroness noted, including provision of support in relation to the asylum and immigration process, support services and future planning, helping children to develop wider social networks, and ensuring that children’s views are heard in all proceedings that affect them. These are, indeed, very important, and that is why each of them is addressed in our new guidance. It is also why, where local practice is good, those aspects are already provided through the existing care system without recourse to the additional role of guardian for trafficked children. Of course, we take very seriously the letter that the JCHR has written and, as I said, I shall be writing in response.

There was quite an emphasis in Committee and, to some extent, in the discussions this evening on stability of care. We agree that these children need stability and continuity. The new statutory guidance would require local authorities to prioritise trafficked children so as to provide the greatest likelihood of their building a sustained relationship with their social worker. These are the most vulnerable children and they are precisely those for whom social workers must do most in providing understanding and support.

I have described here only a portion of our proposed new guidance, which covers a range of issues to ensure that trafficked children receive the right care and support. We would welcome suggestions from noble Lords on whether the guidance should include other issues. It is hugely important that we get the support for these children right, and we very much look forward to continuing discussions with noble Lords about how best to do that. We recently sent both the draft regulations and the guidance to noble Lords and they are available on our website. In particular, we would like to discuss with my noble friend Lord McColl, and with any other noble Lord who might wish to join in, the opportunities offered by the regulations. I am delighted that we have in the diary a meeting with my noble friend Lord McColl later this week. Our discussions are clearly very important for this group of children.

When officials shared the drafts of the guidance with representatives of the Children’s Society, the Refugee Council, and Children and Families Across Borders, they all found much to welcome in the guidance. I hope that noble Lords will find the same when they read the drafts and that they provide a sound basis for further discussion when we meet shortly. I therefore hope that my noble friend will be willing to withdraw his amendment.