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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
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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.
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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
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Baroness Morris of Bolton: I understand that the Minister may not be able to answer my question about trafficked children now, but I know that there is real concern. I was speaking to Inspector Nick Kinsella of the excellent Human Trafficking Centre in Sheffield. When the centre rescues these children, it has a problem with finding appropriate accommodation for them. If the Minister could write to say what the Government are doing to look at that pressing issue, I would look forward to receiving his response.
Lord Adonis: I will certainly study the noble Baroness’s remarks with care. We published the UK Action Plan on Tackling Human Trafficking last March. It contains a comprehensive strategy to improve the identification and safeguarding of child victims of trafficking and to reduce the risk of their going missing. If there is more that I need to add, I will do so.
[The Sitting was suspended for a Division in the House from 4.17to 4.27 pm.]
The Earl of Listowel: I shall withdraw the amendment but before I do so—
Baroness Walmsley: Before the noble Earl, Lord Listowel, does so, may I ask the Minister a question? Will all the issues that I mentioned in my definition of “welfare” be covered in the guidance to which he referred and will additional flexibility be given to local authorities to take account of other issues?
The Earl of Listowel: I thank the Minister for his reply. I look forward to hearing further details of those young people whose placements break down more frequently than three times. I emphasise again that the danger with the current system is that it is cheaper to keep children in foster placements. The most vulnerable and traumatised children may find themselves being moved from one foster placement to another and then another. Unless one keeps a strong eye on those children who are moved to five, six, seven or eight placements, one could severely harm those most vulnerable children as they go through the care system until eventually they end up in the right, perhaps more expensive, specialist placement. We do not want to put them through that. I look forward to receiving the information, but we need to look at what pressures might be put on local authorities to ensure that, when these numbers start building up, prompt action is taken to place the child in the right placement, which, as I say, may be a more expensive specialist placement. I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
[Amendments Nos. 29 to 34 not moved.]
[Amendments Nos. 35 and 36 not moved.]
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Clause 9 [Provision of accommodation which is near to looked after child’s school]:
Lord Judd moved Amendment No. 38:
The noble Lord said: I am conscious that the amendment brings together various threads in my noble friend’s varied and extensive responsibilities, so I particularly hope that he will be able to respond positively. I place on record the fact that I have had very helpful discussions with some of those working with the children and young people to whom the amendments apply. I have found their commitment, based on their insight and experience, utterly convincing. I am also speaking to Amendments Nos. 38 to 42 and Amendment No. 45. I shall be interested to hear what the noble Baroness, Lady Walmsley, says about Amendments Nos. 43 and 44, because they seem to be very much in harmony with what I am proposing.
Under Clause 9, local authorities are required to make arrangements for a child whom they are looking after to be accommodated near to the school at which the child is a registered pupil. As far as it goes, this is to be welcomed; it may go some way towards addressing the instability that looked-after children experience in their education. Annual education statistics have clearly demonstrated the wide gap in performance between looked-after children and the wider child population across all key stages. For example, in 2006, 58 per cent of looked-after children of the appropriate age achieved level 2 at key stage 1, compared with 85 per cent of the general population of that age group. At key stage 2, 47 per cent achieved level 4, compared with 81 per cent of the general population. At key stage 3, 30 per cent achieved level 5, compared with 74 per cent of the wider population. At key stage 4, the inequalities persist, with 12 per cent of looked-after children achieving five or more A* to C grades at GCSE, compared with 59 per cent of the general population.
It is widely acknowledged that instability in a looked-after child’s placement is one of the key barriers to their receiving uninterrupted education provision and therefore to their achieving their potential. While the provisions under Clause 9 are welcome, a number of questions remain. First, it is unclear what categories of educational establishments are included under the clause, apart from the provision that pupil referral units be altogether excluded. The purpose of the amendment is to gain clarification from the Government on which educational establishments will be included. For example, will the provisions cover maintained nursery schools, academies and special schools?
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Secondly, in the Care Matters White Paper, the Government recognised that many young people are leaving care at 16 when they may well be ill prepared to live independently and where such a transition can have a negative impact on the child’s education and training. The White Paper also proposes pilots to better involve young people aged 16 to 18 in decisions around their leaving care and to allow young people to remain with their foster carers until the age of 21. With this emphasis on allowing looked-after young people to stay in care beyond the age of 16, should further education colleges at which such young people may be receiving educational provision really not be included under Clause 9?
Finally, as I have just explained, new subsection (9B)(a), to be inserted by Clause 9, states that,
This raises considerable concerns. I hope that my noble friend can clarify precisely why PRUs are not included. They provide education to children of compulsory school age who, because of exclusion, illness or other factors, are unable to attend a mainstream school. Like other children, a looked-after child who has had difficulties in mainstream education may well be receiving education in a PRU. Placement in accommodation far away from this establishment could have a negative impact on a child’s educational achievement and experience. Indeed, it could almost be argued that those children are, by definition, more in need of nearby provision than are others.
To sum up, will my noble friend take the opportunity of Grand Committee to clarify exactly which educational institutions will be included under the Clause 9 provisions? Will he indicate whether further education colleges will also be included under Clause 9 to reflect the Government’s intentions to allow looked-after children to stay in care beyond the age of 16? Will he explain why pupil referral units have been excluded from the Clause 9 provisions? I beg to move.
Baroness Sharp of Guildford: I give general support to Amendments Nos. 38, 42 and 45, and I will speak in particular to Amendments Nos. 43 and 44, which are in my name and that of my noble friend Baroness Walmsley.
As the noble Lord, Lord Judd, spelt out, Clause 9 of the Bill, to which all these amendments relate, will amend Section 23 of the Children Act 1989 to ensure that local authorities are required to make arrangements for the child to be accommodated near their school. As the noble Lord, Lord Judd, explained, it is important to clarify what is meant by “school” in this context, particularly in a world in which we have a proliferation of different types of school. We have particular sympathy with the spelling-out of what types of school they should be, although we do not go along completely with the points made by the noble Lord about pupil referral units. Normally, a pupil is at a referral unit only for a short period. If they are to go back to their mainstream school, it is important that, rather than being moved, they stay where they are in order to be
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We are particularly concerned about access for looked-after children to these new diploma courses, which are often run in collaboration between schools and colleges. It is essential to ensure that children in care are not restricted in the opportunities that are available to them. They often have lower attainment, as the noble Lord, Lord Judd, explained, than the average of their peer group at key milestones in their school careers. They are especially likely to be among those pupils who find little stimulus in the present secondary school curriculum, particularly the GCSE courses in which low attainment—for example, a pass below grade D—is often perceived as a failure. They are therefore particularly likely to benefit from the new diploma courses to be run alongside the existing GCSE and A-level qualification framework. It is vital that young people receive support and guidance to assist them in making important decisions for entry to qualification routes that meet their aptitudes and aspirations and provide a means of progression to future stages of learning.
Equally, it is important that the courses pursued are not overly specialised, so that young people do not become locked into narrow occupational tracks without developing transferable skills for entry into different learning pathways. It may be that, having achieved the first stage of diploma studies, which will give them a level 1 or level 2 NVQ qualification, they would best proceed to further education courses offering a BTEC or a City and Guilds qualification, or something of that sort. In that respect, access to a further education college is just as important as access to school. I very much endorse what the noble Lord, Lord Judd, said, about further education colleges.
Amendment No. 43 gives us a definition of the word “near”. In page 7, line 3, a new subsection (7G) is inserted into Section 23 of the 1989 Act. It states:
“The arrangements must enable a child to live near that school or (as the case may be) one of those schools”.
We seek through the amendment to probe the Government as to what “near” might mean. When we sought guidance, we came up with the fact the 1996 Act contains a definition of walking distance. Section 444(5) of the 1996 Act states:
(a) in relation to a child who is under the age of eight, means 3.218688 kilometres (two miles), and
(b) in relation to a child who has attained the age of eight, means 4.828032 kilometres (three miles),
We have suggested that that might be the definition of what is near. The Minister may well come back to say that it is extremely difficult to do that. On the other hand, I bring to his attention the fact that new subsection (7G) provides two get-outs for the local authority. One is the weasel words “reasonably practicable”, which means that, where it is reasonably practicable for them to be within walking distance,
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Baroness Morris of Bolton: I have little to add to the excellent explanation of the amendment by the noble Lord, Lord Judd, and the noble Baroness, Lady Sharp, save to say that we share their concerns.
Lord Adonis: I have just been informed that it is the birthday of the noble Baroness, Lady Morris, today. If I may say so, greater love hath no woman than that she lay down her birthday for a Grand Committee. We are delighted that she is with us today.
My noble friend Lord Judd is right to say that what he was asking about in respect of Clause 9 is not defined in the Bill, but I can give him almost all the reassurance that he seeks and I hope that I can give him an adequate explanation of one of his concerns; I will look further at a second one. In respect of schools, in Clause 9, we take the word “school” to have its normal accepted use, as meaning an educational institution at which a child is a registered pupil. The expression includes all maintained schools, including special schools and maintained nursery schools, non-maintained special schools and independent schools, which includes all academies, city technology colleges and city colleges for technology and the arts. That meets almost all the concerns of my noble friend.
On PRUs, my explanation is precisely the one given by the noble Baroness, Lady Sharp. We gave careful consideration to whether pupil referral units should be included. We took the decision that the new provision should not apply to PRUs on the ground that such placements are, by their nature, intended to be temporary. They are specifically organised to provide education for children who would not otherwise receive suitable education because, for example, they have been excluded. We would expect a local authority to take all necessary steps to ensure that children are reintegrated in a mainstream school as soon as possible, which is almost always consistent with their welfare, and we believe that a statutory impediment to such reintegration may work against their welfare. That is why we have not put PRUs in the category of schools.
In respect of further education, some children in key stage 4 attend courses at institutions in the FE sector. However, almost all 14 to 16 year-olds in the general population who attend courses at FE colleges will be registered at a school and we have no reason to suppose that the same is not true of looked-after children. The only case that would not be caught by this new restriction on school moves is that of a looked-after child who is moved from one institution to another within the FE sector and who is not a registered pupil at a school. The size of that group is likely to be very small and we believe that we can address those cases through statutory guidance to local authorities, rather than by introducing the additional complexity in the provision that would result from the practical difficulty of identifying with sufficient legal certainty the trigger for the duty in the absence of a common registration system in the FE
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Lord Judd: As far as my amendments are concerned—
Lord Adonis: I hope that my noble friend will forgive me, but I completely forgot to reply to the noble Baroness, Lady Sharp, on the issue of proximity. Perhaps I should do that before my noble friend speaks.
Lord Adonis: It is true that the effectiveness of Clause 9 in improving educational stability depends on the interpretation of the word “near”. However, the meaning of “near” will properly vary with the particular circumstances of the child, including his age and any special educational needs or disability that might affect his ability to travel. We do not think it appropriate rigidly to define “near” in the Bill. The importance of preserving stability at school needs to be balanced against giving local authorities sufficient flexibility in the choice of the location of the care placement to ensure that it is a good one that can meet the child’s care needs. A local authority may find that the placement that best meets a child’s wider needs and enables the child to remain at his existing school is not within walking distance of the school. The noble Baroness’s amendment would prevent the local authority from making such a placement, even where it would otherwise be within reasonable travelling distance, and we do not believe that that would be in the best interests of the child. The word “near” is not defined in the Bill, but that is deliberate; we expect local authorities to interpret it reasonably, taking account of all the factors in the case.
Baroness Sharp of Guildford: Are words to that effect likely to be placed in guidance to local authorities?
Lord Adonis: I am sure that they will be, because we give guidance on everything. The answer is yes.
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