Children and Young Persons Bill [HL]

I am mortified that the noble Baroness, Lady Walmsley, regretted only the growing chasm between herself and the noble Baroness, Lady Morris. I thought that she would be far more concerned about the growing chasm between herself and me. I greatly regret that she is so far away and I wish that she was closer. However, her words carry equal force wherever she delivers them from within the Grand Committee. Greater stability and continuity are our objectives, which are clearly shared by all noble Lords who have spoken in the Committee today. In respect of the noble Earl’s Amendment No. 28, we are committed to reducing the number of inappropriate out-of-authority placements and to encouraging provision of a range and choice of suitable-quality accommodation within each local authority area that is capable of meeting the needs of the children that it looks after. The noble Earl asked about data on placement stability and whether we could publish data on those who are moved five, 10 or 15 times a year. We currently have national indicators on three or more placement moves and long-term placement stability and we publish those statistics. However, national data collection captures information on every placement move, and the extremely high levels of placement disruption to which he referred are counted. I shall write to him with the information that we have in a form that may be useful to him. The latest figures show that 34 per cent of children are placed outside their local authority area. This rate has increased in recent years. Because of this high level—we believe it to be unacceptably high—we think it right to strengthen the duties on local authorities to help to reduce the current reliance on distant placements, both outside the local authority or at some distance within it. Children have told us that they can feel isolated in distant placements and miss contact with their friends and local communities. Local authorities find it harder to be attentive corporate parents to children who are in distant placements and they have less leverage over the relevant services in that area. In general, children placed out of area do less well than those placed closer to home. We know that children placed out of their local authority area are more likely to achieve poor outcomes and to be in very expensive placements, which are spot-purchased and do not always justify their costs. For all those reasons, we have the provisions set out in Clause 8. However, there will always be children for whom a placement outside their local authority area is the right placement; that is, children with needs that can be met only in very specialist placements or those who may need to be moved away from their home area for their own protection or for the reasons set out by the noble and learned Baroness, Lady Butler-Sloss. Some of these children are the most vulnerable looked-after children of all. That is why we have included in Clause 8 the new test, which we believe to be robust; I say that in respect of the remarks made by the noble Baroness, Lady Morris, about new subsection (7A). An authority would have to act reasonably in the judgment that it makes, which is a high threshold in terms of the way in which it exercises its judgment under that subsection. To ensure that local authorities exercise this discretion appropriately, we shall use the power in new subsection (7B) to set out a process in regulations to scrutinise the decision to place out of area, to ensure that the authority has properly considered all the local options and whether out-of-area placement would meet the child’s assessed needs, and to ensure that arrangements have been made to deliver the services that the child needs. The noble Earl, Lord Listowel, asked whether we would allow Members of the Committee to see a draft of the guidance on the placing of children before Report. I am afraid that I cannot help him in that regard. As we have already said publicly, our commitment in respect of the revised Children Act 1989 guidance is to produce it by 2009, so it will not be available shortly and certainly not by Report. On Amendment No. 31, we share the concern that the location of a placement near to the child’s home should not be the sole consideration when deciding on a suitable placement. The statutory framework already reflects that. Section 22 of the Children Act 1989 places local authorities under an overarching duty to safeguard and promote the welfare of looked-after children. By virtue of this, whenever a decision is taken that concerns an individual looked-after child, the local authority has a general duty to safeguard and promote the child’s welfare. New subsection (7C) restates the existing presumption in Section 23(7) of the Children Act 1989 that usually it will be in a child’s interests to place them near to home. This duty to place near home takes effect under Clause 8 subject to the duty to place in the authority’s area, reflecting the fact that the authority responsible for looking after the child will be better able to co-ordinate other services within its area that the child might need from other local agencies, including education and healthcare providers. However, this presumption will be rebuttable. The overriding duty of the authority will be to ensure that the placement is consistent with its general duty to safeguard and promote the child’s welfare. Furthermore, the effect of the limitations on the duty set out in new subsection (7E) of reasonable practicability and being consistent with the child’s welfare is to ensure that the local authority is under no duty to perform the impossible and is able to take into account a range of factors in addition to placement location. These might include whether the local authority can place together siblings who might have different homes, whether the proposed placement would enable the child to remain at the same school and, of course, whether the support that could be offered by the specific foster carer or children’s home is consistent with the child’s welfare. On Amendment No. 32, we accept that specific legal duties must not have the effect of creating perverse incentives or reducing the flexibility that local authorities need to make decisions that take proper account of local circumstances and priorities. There may be situations where it is simply not possible for a local authority to place the child near his or her home or with siblings. All the remarks that I have just made in respect of the amendment tabled by the noble Baroness, Lady Morris, apply. On Amendment No. 33, it is obviously essential that every looked-after child be kept safe and protected wherever they are accommodated by the authority that is responsible for their care. Clause 8 does nothing to detract from that. It might not, for example, be consistent with the child’s welfare to place a child near his or her home if he or she was at risk of abuse from a family member. Local authorities are under a general statutory duty, set out in Section 11 of the Children Act 2004, to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children. The statutory guidance, Working Together to Safeguard Children, published in 2006, sets out the actions that local authorities need to take to ensure that children’s welfare is safeguarded. On Amendments Nos. 34 and 46, any decision that touches on the welfare of a child will necessarily involve consideration of a wide range of factors, some that are particular to the child and his family situation and some that are of universal relevance. I agree that those highlighted by noble Lords are vital to the interests of children and young people. However, we do not believe that it is either desirable or necessary to specify a definition of a child’s welfare in primary legislation. The term ““welfare”” is not currently defined in legislation. However, it is well understood by the courts, local authorities, social workers and other practitioners involved with looked-after children. In common usage, ““welfare”” means the well-being, happiness, health and prosperity of a person. In the context of the Children Act 1989, it requires consideration of both the child’s short-term and long-term needs. Our view is that, by specifying a definition in primary legislation, we may end up with a narrower definition of welfare than we currently have. That would limit the choices that a local authority can make in a way that may be detrimental to a child’s overall welfare. Furthermore, Section 10 of the Children Act 2004 places local authorities and their partners under a duty to co-operate to improve the well-being of children, as defined by the five Every Child Matters outcomes. Those outcomes cover the aspects of welfare that the noble Baroness highlighted as important and apply as much to looked-after children as to other children. To repeat, we will set out in the revised Children Act 1989 guidance the key factors that we expect a local authority to take into account when making care placement decisions and performing its various duties under Section 23. We also intend to leave local authorities the scope to take into account additional factors that may be relevant to a particular child. That guidance will cover the factors highlighted by the amendments. On that basis, I hope that the Committee will be content with the Government’s position.