Children and Families Bill

Baroness Walmsley Excerpts

Monday 18th November 2013 Grand Committee

[Baroness Perry of Southwark (Con)]

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 As the noble Baroness rightly said, that judgment could be out of date and the improvement could have happened in the mean time.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

[Baroness Walmsley (LD)]

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

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

[Baroness Howarth of Breckland (CB)]

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

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

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

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

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Moved by

[Baroness Walmsley]

243: After Clause 78, insert the following new Clause—
“Part 4AProtection of childrenActions due to a belief of possession by spirits
(1) Section 1 of the Children and Young Persons Act 1993 (cruelty to persons under sixteen) is amended as follows.
(2) In subsection (1) omit the words “and has responsibility for any child or young person under that age,” and for the word “him” substitute “any child or young person under that age”.
(3) In subsection (2), after paragraph (b) insert—
“(c) in subsection (1) the meaning of “ill-treats” includes the communication by word or by action a belief that the child is possessed by evil spirits or has supernatural harmful powers—(i) to the child concerned, or(ii) to anyone connected to that child.””

[Baroness Walmsley]

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

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

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

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

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

The first part of the amendment would delete the words,

“has responsibility for a child or young person”.

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

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

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

I have been encouraged to lay this amendment by the charity AFRUCA, which was established in the wake of the Victoria Climbié tragedy. Victoria’s killers justified their abuse by their belief that she was a witch. Since then, the work of AFRUCA has shown the need for clarification of the law. For more than 11 years they have made efforts to raise awareness in the community and among the public about the plight of these children, but all that work was not enough to prevent the terrible death of Kristy Bamu in December 2010 and other abuses linked to witchcraft accusations. Kristy died with 135 injuries inflicted on his body.

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

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[Baroness Northover]

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

[Baroness Walmsley]

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

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

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

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

I thank the noble Baroness, Lady Lister, and my noble friend Lord Storey and others who supported Amendment 246. My difficulty with what the Minister said is that you can charge and imprison somebody only when the case is reported. One of the major problems is the reluctance of parents to come forward and tell the authorities that the child is being abused, perhaps particularly if the abuse is happening in a place of faith instruction. The Under-Secretary of State for Children and Families, Edward Timpson, has been very open to discussions with me, as the Minister said. I am quite sure that he, like me, would like to iron out this sort of practice once and for all.

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

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

[Baroness Howarth of Breckland]

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

[Baroness Walmsley]

I thank the noble Baroness for her additional comments. I am not saying that training is not a good thing; of course it is, but we need something additional. African countries that have changed the law need a much better child protection system—closer to what we have here—but we have a pretty good child protection system and we still have not succeeded in protecting these children. We need to make it absolutely clear that this is child abuse, that it comes under the law and that it will not be tolerated. I thank noble Lords for the passionate debate that we have had and beg leave to withdraw my amendment.

Amendment 243 withdrawn.

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[The Countess of Mar]

I support the noble Lord, Lord Ramsbotham, in his contention. We have a Minister for Children, and the Children’s Commissioner should report to that Minister.

[Baroness Walmsley]

My Lords, I will not speak in detail about the amendments but I should like to express my general support for anything that strengthens the independence of the Children’s Commissioner. The commissioner is not completely independent. He or she will have their powers very much diluted, which would be a pity because the Bill considerably improves the powers and duties of the commissioner. I very much welcome that.

Of course, it is also important that the commissioner has appropriate resources with which to carry out those improved powers and duties. The noble Baroness, Lady Lister, has clearly shown the link between independence and money. If the Government are controlling exactly how the commissioner spends his or her money, where is the independence? Her amendment should therefore be carefully considered.

[Baroness Howe of Idlicote]

My Lords, I will be reasonably brief on the three amendments to which I have added my name, although all the amendments in the group are admirable. I also very much thank the Minister for his helpful letter and proposed amendment. There has been little time to take it in and I look forward even more to what he will say at the end of the debate.

As my noble friend Lady Massey said—and the noble Baroness, Lady Lister, expanded forcefully on—the UN Committee on the Rights of the Child has made it clear that national human rights institutions for children, including children’s commissioners, should be established in compliance with the Paris principles, which were adopted more than 20 years ago by the UN General Assembly. These minimum standards provide guidance for the establishment, competence, responsibilities and composition—including pluralism, independence, methods of operation and quasi-judicial activities—of such national bodies. These recommendations underpin the amendments that I am supporting. The Committee on the Rights of the Child has said:

“It is essential that institutions remain entirely free to set their own agenda and determine their own activities”.

It has also stated:

“The appointment process for ombudspersons for children should be open, transparent and appropriate”.

With regards to the commissioner’s funding, the Bill currently affords the Secretary of State absolute discretion in deciding the amount, timing and conditions. Currently, too, this has the potential significantly to undermine the commissioner’s independence. The Committee on the Rights of the Child is clear:

“In order to ensure their independence and effective functioning, NHRIs must have adequate infrastructure, funding … staff, premises, and freedom from forms of financial control that might affect their independence”.

Also, as Amendment 257 states, the appointment of a commissioner has to be seriously considered from all sorts of perspectives. I have met the commissioner whom we appointed and, if I may say so, it is an extremely good appointment.

However, what is said in Amendment 257 is equally important:

“The Secretary of State shall appoint an individual only if the Secretary of State reasonably considers the individual”—

and this is the bit that I want to stress—

“has adequate experience and knowledge relating to children’s rights, including the involvement of children in decision-making; and … is able and willing to act independently of Government”.

The active involvement of children in decision-making is the area that I want to stress, because that is essential in today’s world and I hope that the Minister will be able to reassure me on that point, quite apart from any others.

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[Viscount Eccles]

My Lords, I would like to continue to probe the question: what is the Government’s true opinion of the Children’s Commissioner as a corporation sole? I hope that my Government are not exclusively depending on John Dunford. His report was published three years ago. That is a third of the life of the Office of the Children’s Commissioner so I suppose that something must have happened over the past three years; I do not think that things will be exactly the same and I would like to know how they have developed.

On another occasion, maybe on Report, I will want to have a longer discussion about independence. I will confine myself to saying that arm’s-length relationships between public bodies and the Government are twisted arm’s-length relationships, and if you are funded by public money there is no such thing as independence in the true meaning of the word. If you consider the American War of Independence, which resulted in the United States of America, you can completely forget that as a meaning of the word when it is applied to a public body.

Three years on, I will just make the comment that John Dunford did his report on his own, in five months; he is a very able man. He did not have any peer group review; I think it was mentioned earlier that sometimes it is a good thing to have some peer group review. I hope that the Government are not just taking cover behind John Dunford because by now they should have an opinion of their own.

I have two background thoughts when I raise these issues. One is the size of the superstructure that we have built in recent years on top of what is, to me, the front line, which has been very frequently mentioned during our debates. This is a very big superstructure, starting with the United Nations—190 signatories, not including the United States of America; some 70 of them have a national human rights institution. The expert committee in Geneva gets a report every five years. We last sent ours in 2008. The next one is going in 2014, which seems to be six years, not five, and there may be some message in that. That draft report is 200 pages long. It is sponsored by the department present here today, which has to get evidence from the whole of the rest of government, as the noble Lord, Lord Ramsbotham, mentioned.

My second amendment is also a probing amendment. I just wanted to remind myself that everybody is concerned with the human rights of children. There is no exception—apart from, perhaps, one or two people living on a beach in western Scotland who have completely dropped out into a hut. However, I do not think that there is anybody who is not concerned. There are parents and there are teachers; many people have two roles.

If one third of children under 18 are not represented by an adult, by whom are they going to be represented? We have to remember the huge scope of the subject we are discussing, and sometimes a degree of unreality comes into it. For example, the Explanatory Notes say that this Bill is “strengthening” the Children’s Commissioner. In what way is it strengthening the Children’s Commissioner? It does not appear from my noble friend’s answer to the previous debate that the commissioner is going to get any more money. They are given more duties; they are even given a direction by Parliament to look into advocacy, while the rest of the Explanatory Notes say that we are not going to tell them what to do, we are going to leave them entirely free to decide what to do for themselves—but apparently not in the matter of advocacy.

The Children’s Commissioner also has a duty in the Bill to,

“consider the potential effect on the rights of children of government policy proposals and government proposals for legislation”.

You could employ 27 people on doing only that and they would have plenty to do. The Government need to be much clearer with us on what they mean by strengthening. If you add to the duties of an organisation but do not add to its resources, you could argue that you weaken it.

Where has the Children’s Commissioner stood in relation to the size of the task? I think that the commissioners have done rather well. They have done research, co-operated with a lot of other bodies, produced interesting reports, been a thorn in the flesh and rather successful lobbyists. Whom have they lobbied? They have lobbied the Government in general. You can argue about whether you want a lobbyist 100% funded by public money, or whether you would rather it was Amnesty International or some other rather looser and less controlled body that you want to do your lobbying, but it seems to have worked rather well.

The question I end with is: what is going to change? How is this Bill going to change the capability of the Children’s Commissioner? Or is it going to continue with business as usual? I really would like an answer to that question. I beg to move.

[Baroness Walmsley]

My Lords, I have some amendments in this group, but before I speak to them, I will say a word about the amendment of the noble Viscount, Lord Eccles. I do not support it because it would take out what is the most significant improvement in the powers and duties of the Children’s Commissioner: namely, the duty to promote and protect the rights of children in England. This is making our commissioner a rights-based commissioner for the first time and I very much welcome that. I hope that the Bill makes a difference and that the Government are not, in the words of the noble Viscount, Lord Eccles, “playing a game”.

I will speak to Amendments 250, 254, 255 and 256 in this group. Before I do, I will mention my support for Amendment 252 on the UN Convention on the Rights of the Child, tabled by the noble Baroness, Lady Lister, and Amendment 266A about a duty on public bodies to respect children’s rights and give proper regard to their views, in the name of the noble Baroness, Lady Massey. However, in order to save the Committee’s time, I will leave both noble Baronesses to speak for me on those amendments.

Before I go into the detail of my amendments, I will pay tribute to the coalition Government and the current Ministers, and particularly to the former Children’s Minister, my colleague Sarah Teather MP, for bringing the Children’s Commissioner for England much closer to the Paris principles and making the office a much better national human rights institution, as it should have been from the start.