Appendix 1: Letter from Kevin Brennan MP, Parliamentary Under Secretary of State for Children, Young People and Families, Department for Children, Schools and Families, dated 4 June 2008

Fifteenth Report of Session 2007-08: Children and Young Persons Bill

I am writing in response to the Committee's conclusions and recommendations relating to the Children and Young Persons Bill in the above report. I am pleased that you 'welcome the Bill as a measure enhancing human rights'. I have sought to provide a full response to the recommendations of the committee.

Social Work Practices

1.23 Pending a more general solution to the "public authority" problem by a clarification or amendment of the Human Rights Act, we recommend that the Bill be amended to make it absolutely clear that it is intended that the provision of social work services to a local authority pursuant to arrangements made by a local authority under this part of the Bill is a function of a public nature for the purposes of the HRA 1998

I refer to my letter of the 7 January of this year where I set out our position fully; it is not necessary to make provision on the face of the Bill. The Government considers that the status of providers of social work practices is clear, and that they will fall automatically within the definition of public authority in section 6(3)(b) of the Human Rights Act. I am aware that the Human Rights Minister, Michael Wills MP, has corresponded with the Committee on the wider issue of the definition of "public authority" in the context of the forthcoming consultation on the British Bill of Rights and Responsibilities.

Placement with siblings

1.27 …We[…]) recommend that Clause 9 of the Bill be amended to make clear that the presumption should be that siblings be accommodated together unless it is not conducive to their welfare, or where the interference with their right to respect for their family life is both necessary and proportionate in order to achieve a legitimate aim.

Clause 9 is clear that a local authority, when providing accommodation for a child, where it also provides accommodation for a sibling of that child, should ensure that the placement allows the siblings to live together. Of course, this has the primary qualification that in determining the most appropriate placement the local authority has to consider what best safeguards and promotes the welfare of the child. This follows from the local authorities general duties to safeguard and promote the welfare which impact on all local authorities' decision making and ensure they are child focused. Secondly, it is qualified by what is reasonably practicable in all the circumstances of the child's case for the reasons I have set out in previous correspondence (such as, for example, a large sibling group coming into care at the same time). We will in statutory guidance (as part of the review and update of the whole suite of Children Act guidance) the subtleties of the interplay of various factors in relation to placement decisions will be explored in more detail.

I believe the Committee's concern here is that local authorities will interpret this as though mere administrative convenience is a justifiable rationale for not placing siblings together. It is the Government's firm view that this would not be a reasonable interpretation of the clause as drafted, in the context of the other provisions of the Children Act 1989: local authorities will need to be able to demonstrate that their placement decision is the most appropriate one available for the child; that it is reasonable decision, given all the circumstances of the case (in particularly their assessment of the child's needs); and, most importantly, that the placement will safeguard and promote the child's welfare.

There are dangers inherent in considering only one element of a placement decision in isolation, and by doing so elevating it above other important factors. Indeed, this was illustrated in the drafting difficulties that became apparent following detailed consideration of the original clauses 7-10 of the Bill as it was originally introduced. In any particular child's case, many considerations, some of which may conflict, will inform the decisions that local authorities (and their practitioners) take with regard to placement. Great care was taken with the drafting of the provision to enable a reasonable exercise of discretion and ensure the provision would be workable in practice. The approach taken by this Government amendment was endorsed in the House of Lords.

Independent Reviewing Officers

1.35 ...our fears are that an IRO may, for reasons of conflict and a lack of independent, be unable to defend robustly the position of a looked-after child and to ensure that his or her views are heard. These fears are exacerbated by the Government's implied acceptance in its creation of a backstop power (Clause 12) that IROs may not be sufficiently independent to discharge their function. We therefore recommend that the Government amend Clause 11 to set out, on the face of the Bill, that IROs are required to be entirely independent of the local authority so as to ensure that children are heard in material decisions affecting them.

We have acknowledged that the existing system in relation to IROs is not working as effectively as it should: there is more to be done to ensure challenge, rigorous reviews of care planning and full and meaningful engagement of children, in their care planning, and other decisions that affect them. However, we believe that the current system can be made to work, and that the root cause of current dissatisfaction with existing provision is not necessarily related to the structure or independence of IROs, as I have taken the opportunity to set out at some length below. We will however keep the effect of the reforms introduced by clause 11 under close review. If the necessary improvements are not seen, clause 12 ensures that Government has the power to take further appropriate and proportionate action, in response to firm evidence as to the nature of the problems.

There is no consensus on the reasons why IROs have, in some areas, failed to have the degree of impact on improving professional practice that was hoped for. Government believes there is insufficient evidence at present to determine whether the perceived shortcomings in case review processes are attributable for example to weaknesses in the training and support networks for IROs; the significant variation in caseloads; or whether there are more fundamental, structural problems with the way that some local services are set up.

The statutory framework under which IROs operate only came into force in September 2004. Before undertaking any major structural reform, with the inevitable disruption that would cause to services to children, we want to see whether the strengthening measures contained in clause 11 will have a real impact in improving outcomes for looked after children, and the effectiveness of the IRO in contributing to those outcomes.

This is the view shared by many stakeholders, take for example the response from the Family Justice Council (FJC) to the Care Matters Green Paper on this very issue:

'The drastic step of relocating responsibility for IROs outside local authorities, for example within CAFCASS or some other independent organisation, demands serious consideration. However the level of disruption and expense and the unlikelihood of any, or any sufficient increase in CAFCASS resources for the purpose, which such a course would involve is a strong argument against. Moreover the issue of independence from the local authority, perceived or actual is not in the view of the Council, the central issue. Steps should be taken to see whether the current position can be improved, radically, before such a drastic course is adopted' [Emphasis added]

We share the view of the FJC, as do many IROs. My Department commissioned a recent survey of IROs themselves and this included a section on the issue of conflict of interest. Of the 70 local authorities that responded to the questionnaire, only 3 IROs cited concerns about potential conflicts of interest in their role. Some of those questioned who did not feel that such an issue existed, suggested this was due to the fact that that they were placed within the Strategy & Performance Division of the authority and not the Social Care Division, giving them a degree of separation from front line social work and an unconnected line management structure.

In such structures, IROs can play a key role within the local authority by contributing towards the local authority's arrangements for internal audit, quality assurance and performance management of its children's social care workforce, a role that is greatly valued by many authorities. In many local authorities, IRO services provide formal reports on the performance of the authority as corporate parent directly to both their Director of Children's Services and, to the authority's lead member for children's services or to the Council committee responsible for its corporate parenting strategy. If IROs could not be local authority employees, we would have concerns that a good deal of the knowledge base and wider power to influence and develop social work practice for the better within authorities would be lost, with potentially negative consequences for the quality of care provided to looked after children.

I can reassure the Committee that the Government will monitor progress closely. If the evidence shows that the desired change in the effectiveness of IROs can be achieved through the new framework introduced by clause 11 and combined with other provisions in the Bill these changes deliver real improvements in the outcomes for looked after children, it may not be necessary to go any further. If not we have the option of exercising the enabling powers in clause 12 to establish a new national IRO service entirely independent of local authorities.

The Committee included in their report on this issue reference to the UNCRC and Article 12, and I thought it would helpful to provide the Committee with a view in relation to this, although this does necessarily involve some repetition of the detail I provided in my letter of the 7 January. Government is clear that both the spirit and the obligation of article 12 are already fully reflected in legislation and practice in relation to looked after children. There are existing statutory duties in primary legislation (reiterated in Regulations and statutory guidance) for local authorities to seek and give due weight to children's wishes and feelings[7]. This is reinforced in the Children and Young Persons Bill with a new statutory duty for the IRO to ensure that the local authority gives due consideration to the wishes and feelings of children.

There are other administrative safeguards, such as the requirement in the Integrated Children's System for a child's wishes and feeling to be recorded[8], and where the local authority makes a decision against the wishes of a child, to include the reasons why it has done so. There is a statutory right for all looked after children (and a much broader range of people) to assistance in making representations about the services they receive[9] ,which includes access to independent advocacy[10] and requirements in relation to local authority complaints processes[11]. IROs also have a statutory power[12] to refer a case to CAFCASS, if they consider it appropriate to do so. Our guidance[13] makes it clear that the IRO should consider exercising the power of referral in circumstances where there is a danger that the child's human rights are being breached. This power is restated in the Children and Young Persons Bill[14]. The referral power is not limited, however, to cases involving a potential breach of the child's human rights; it could be used in other circumstances in which the child might be entitled to legal redress for breach of any of the local authority's other statutory duties.

Clause 11 will enable us to issue guidance to which IROs themselves must have regard, advising them of how they should fulfil their functions, including emphasising that case referrals to the Children and Family Court Advisory and Support Service (CAFCASS) and ensure it is no longer seen as a last resort[15], but considered as a real option where the individual IRO believes that it is appropriate to escalate their well founded professional concerns. The IRO has, in addition, a duty set out in Regulations to assist a looked after child obtain legal advice when they wish to assert their rights in other respects, for example, to apply to the court for contact or for discharge of a care order[16].

We would also expect IROs to be alert to other circumstances in which the child (or his parents or carers) might benefit from a referral to others for legal advice or representation, for example in relation to appeals to the SEN and Disability Tribunal.

Religious persuasion

1.38 On the face of it, the Clause [Schedule 1] appears to raise issues as to the right to freedom of thought, conscience and religion. However, because the provision was inserted by Government amendment at the end of the Committee stage, we have not yet corresponded with the Minister about this issue. We will be writing to the Minister shortly and may return to the issue in a future report.

Thank you for your letter on this matter. I have responded separately and I hope that my letter has addressed your questions on this issue.

Further measures

1.47 In our view, the Bill presents an opportunity to protect further the rights of separated children who are subject to immigration control (including those seeking asylum). We welcome the decision of the Government to review its continued reservation to Article 22 of the UN Convention on the Rights of the Child and look forward to being kept informed of the progress of that review, as well as its outcome. However, we would urge the Government to reconsider its opposition to a scheme of statutory guardianship which would further safeguard the rights of separated children subject to immigration control and would ensure the UK's compliance with Article 19 of the EU Reception Directive.

I understand and have noted the committees long held views on this point. The Government has made it clear publicly, and to Parliament[17], that it believes that it fully complies with Article 19 of the EU Reception Directive.

Article 19.1 states that Members States shall…"take measures to ensure the necessary representation of unaccompanied minors by legal guardianship, or where necessary representation by an organisation which is responsible for the care and well-being of minors or by any other appropriate representation."

There are a range of existing requirements designed to ensure that unaccompanied children are provided with the support they need. The committee is no doubt aware the majority of unaccompanied children are "looked after", as set out in statutory guidance, and as such, they must be provided with the same protections and support as every other looked after child, including support and assistance to take or defend legal proceedings that affect their rights.

The distinct experiences of unaccompanied asylum seeking children may require some more specialised services to other looked after children. There are, for example, very difficult challenges in identifying child victims of trafficking. The good practice guidance, Safeguarding children who may have been trafficked outlines the reasons for child trafficking, the methods used by traffickers, the roles and functions of relevant agencies and how practitioners should follow procedures to ensure the safety and well-being of children who it is suspected have been trafficked as well as helping practitioners identify children who may have been trafficked.

In revising the statutory Children Act guidance for local authorities, we will, of course, be reflecting the significant increase in the proportion of looked after children who are unaccompanied asylum seekers. The original guidance was issued in 1991 to support the commencement of the Children Act 1989. At that time meeting the care needs for unaccompanied asylum seeking children would not have been a significant issue for local authorities. In line with the Code of Practice to Keep Children Safe from Harm and the work to develop specialist local authorities we will ensure that the statutory guidance specifically covers the particular needs that such children may have, and outlines the expectations that local authorities should ensure that unaccompanied looked after children and care leavers are properly supported.

These initiatives represent very significant progress. It is not clear what benefits a system of formal guardianship would add. The reality for most unaccompanied asylum seeking children is that they already encounter a long list of individuals, each performing different functions, who can have a profound influence on what happens to them. As a corporate parent for lone children the role of the local authority is to ensure that services are provided in a co-ordinated way and the child is provided with appropriate support and assistance to access those services.

Introducing another professional into the lives of unaccompanied children could indeed hinder and not help: their role would potentially overlap with the local authority's responsibility to safeguard and promote their welfare, and perhaps, by confusing responsibilities, allow the authority to resile from its obligations to the child. I am anxious to ensure this doesn't happen and believe it would be better to make the existing arrangements work well so that they are provided with the right kind of support for as long as the local authority remains responsible for their care.

1.50 This Bill presents an opportunity to strengthen the rights of children in custody. Whilst we agree that this does not require the state to assume parental responsibility for all children in custody, we note that the state has positive obligations towards all those it detains, including children, who are a particularly vulnerable group of people. We recommend that the Bill be amended to ensure that the full range of child protection measures contained within it be extended to children in custody, whether or not they have looked-after status during the period of their detention.

The Government does of course accept it has positive obligations towards children in custody. In my letter of 7 January I recognised the importance of safeguarding the welfare of all young people in custody and of effective joint working between the various agencies involved in the criminal justice system to ensure that they fulfil their respective responsibilities to contribute to keeping children in custody safe. In our view the "full range of child protection measures" that apply to all children also extend to all children in custody. Youth Offending Institutes and Secure Training Centres, as well as local probation boards and youth offending teams are subject to the duty to make arrangements to ensure that in the discharge of their functions they have regard to the need to safeguard and promote the welfare of children under section 11 of the Children Act 2004. They are also statutory members of Local Safeguarding Children Boards. Furthermore, in 2007 the Youth Justice Board carried out a safeguarding review across the entire secure estate for young people. These are just some of the measures already in place to safeguard and promote the welfare of young people in custody.

The Bill is, however, mostly concerned with implementing proposals set out in the White Paper Care Matters and therefore focuses on the role of the local authority as corporate parents towards children they look after. I agree that a local authority's obligations should not cease when a looked after child is taken into custody, but their role will of course be subject to the conditions of custody. As I explained in my earlier letter, we intend to use powers taken in the Bill to extend the practical obligations of local authorities towards those children who were provided with accommodation under section 20 of the Children Act 1989 immediately before going into custody but who are no longer looked after. This is because of the authority's involvement in the child's life prior to detention and should ensure that all these children receive the services (including accommodation, if appropriate) that they need when they are released.

I trust that this response addresses the points in your report. I hope you and the Committee will join me in working to ensure the passage of a Bill that will improve the lives of children and young people.

8   As described by Lord Adonis, Grand Committee, Children and Young Persons Bill, Day 3, January 16 2008, see Official record, columns GC 535 and GC536 and references to section 20 and 21 of the exemplar. Back

9   Section 26A of the Children Act 1989 Back

10   As described more fully in the statutory guidance, Get it Sorted: Guidance to Providing Effective Advocacy Services for Children and Young People Making a Complaint under the Children Act 1989. Back

11   The Children Act 1989 Representations Procedure (England) Regulations 2006 Back

12   The Review of Children's Cases (Amendment) (England) Regulations 2004, introduced regulation 2A (1) (c) Back

13   lndependent Reviewing Officers Guidance, published in 2004 by DFES Back

14   Section 25B (3) of the children Act 1989 to be introduced by clause 11 of the Children and Young Persons Bill Back

15   Current guidance suggests the power should be used "...[i]f all other methods of resolving an identified problem [in relation to the child's case] have proved or are proving unsuccessful and there is a danger of the child's human rights being breached ... so that legal proceedings can be brought to achieve a remedy". Independent Reviewing Officers Guidance, published in 2004 by DFES, paragraph 5.4. Back

16   The Review of the Children's Cases (Amendment) (England) Regulations 2004, introduced regulation 2A (7) Back

17   For Example, Lord Adonis, day 2 in Grand Committee of the Children and Young Persons Bill. Back