Children and Families Bill

Baroness Jones of Whitchurch Excerpts

Wednesday 16th October 2013 Grand Committee

Moved by

[Baroness Jones of Whitchurch]

40: After Clause 9, insert the following new Clause—
“Review of impact of under-occupancy penalty on prospective adopters, prospective special guardians and foster parents
Before the end of one year beginning with the day on which this Act is passed, the Secretary of State must—(a) carry out a review of the impact of the housing under-occupancy penalty on prospective adopters, prospective special guardians and foster parents, and(b) publish, and lay before both Houses of Parliament, a report of the conclusions of the review.”

[Baroness Jones of Whitchurch (Lab)]

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

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

This matter was raised by our colleagues in the Commons and last-minute changes announced in Committee by the Minister mean that foster carers are allowed one additional room in their homes, as long as they have registered as a foster carer or fostered a child within the past 12 months. This means that around 5,000 foster carers would be exempt from the bedroom tax, and obviously we welcome that concession. However, foster carers with more than one child will still face the bedroom tax. The reforms still apply to foster carers who have two or three bedrooms for fostering children.

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

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

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

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

[Baroness Jones of Whitchurch]

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

[The Earl of Listowel (CB)]

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

[Lord Nash]

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

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

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

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

[Baroness Jones of Whitchurch]

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

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

Amendment 40 withdrawn.

--- Later in debate ---

[Baroness Howe of Idlicote (CB)]

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

[Baroness Jones of Whitchurch]

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

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

--- Later in debate ---

[Baroness Butler-Sloss]

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

“Family mediation information and assessment meetings”.

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

I say at once that I am entirely supportive of the Government’s approach in trying to get parents to agree on their children and to get those who have had failed relationships to agree on how to dispose of any cases they may wish to bring. The problem is the word “mediation”. I have heard from various sources, particularly from lawyers, and one has to bear in mind that there is no longer legal aid in private law cases. Therefore, both parties will be litigants in person and one quite simply has to recognise that we are talking about people who have parted, some of them in extreme acrimony, and all with the real trauma of a failed relationship. They would not be in the family court if there were no failed relationship.

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

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

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

[Baroness Jones of Whitchurch]

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

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

Our first amendment simply adds flexibility to the clause to ensure that where the court considers it unreasonable families are not required to attend mediation, information and assessment meetings. While we believe that mediation, and ADR more generally, can be very useful means of resolving disputes, they are not appropriate in every type of situation—for example, in cases of domestic violence or child abuse. We are therefore proposing amendments for making clearer the process for deciding on exemptions whereby you do not have to be involved in mediation.

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

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

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

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

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

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

[Lord Wigley]

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

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

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

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