Children and Young Persons Bill [HL]

Respecting the human rights of looked-after children and young people is a fundamental aspect of good corporate parenting, and indeed it is unlawful for local authorities, as ““public authorities”” within the meaning of the Human Rights Act 1998, to act in a way which is incompatible with any of the rights and fundamental freedoms set out in the European Convention on Human Rights. As the noble Lord, Lord Elystan-Morgan, said, the role of the independent reviewing officer was introduced by the Adoption and Children Act 2002, partly in response to concerns expressed by the House of Lords in the cases of Re S and Re W about whether some looked-after children, with no adult to act on their behalf, had the means to initiate a challenge in the courts in respect of failures in local authority duties to the child. The IRO was always intended to have a role in supporting and enabling children to access independent expert legal advice in situations where there was a risk that their rights were being breached. For this reason, his statutory functions include referring the child’s case to a CAFCASS officer, if he considers it appropriate to do so. Clause 11 preserves this aspect of the IRO’s functions unaltered, while strengthening his capacity to discharge this effectively by giving him responsibility for overseeing the child’s case as a whole, instead of simply focusing on the review and highlighting his important role in making sure that the child’s voice is heard. There is already a clearly established mechanism in place for the IRO to refer a case to the Children and Family Court Advisory and Support Service (CAFCASS), if he considers it appropriate to do so. This power is not confined to cases where a child’s human rights might have been breached, although that is clearly one of the more important aspects of the referral function. However, we believe that the IRO’s functions in relation to the protection of the child’s rights are rightly ones of referral: the IRO is a trained social worker who will not necessarily have any particular legal expertise or experience. In our view, it is not the role of the IRO to monitor the human rights compliance of the local authority in relation to the child’s case, as the IRO does not have the skills and expertise necessary to carry out that particular function, although IROs should have the training necessary to alert them to cases that may raise such issues and the confidence to refer such cases to CAFCASS. I should like to quote the words of the Family Justice Council in its response to the Care Matters consultation: "““The Council queries whether any IRO has the specialist qualifications and experience within the complex fields of European and domestic Human Rights law affecting children which would enable them to identify Article 6 or Article 8 breaches with confidence. It is for the court, not the IRO, to adjudicate upon potential breaches””." However, I stress to the Committee that in our guidance under this clause we intend to take the opportunity to make it clear that referral by an IRO of a case to CAFCASS should no longer be seen as a last resort, but considered as a real option to ensure proper scrutiny of local authority decisions in cases where individual IROs believe that it is appropriate to escalate well-founded professional concerns. We expect that this lower threshold for making referrals will result in a culture where IROs feel more confident and comfortable in referring cases to others and seeking expert legal advice on behalf of the child. In addition, giving IROs a specific duty to monitor children’s cases for breaches of human rights ignores the importance of the IRO taking appropriate action in other cases of possible breach of statutory duty that might have equal or more practical importance for a child, even though they might not involve human rights issues. For those reasons, we do not feel able to support the amendments, but we attach great importance to the role of the IRO in identifying human rights breaches.