Baroness Smith of Malvern (Lab)

My Lords, I thank the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Barran, for raising important points regarding Clause 11, which, as noble Lords have identified, relates to some of the most vulnerable children in the country. I know that noble Lords rightly feel particularly strongly about this measure. I thank the noble Baroness for her engagement with my officials ahead of this debate, as well as the noble Lord, Lord Storey, and the noble Baroness, Lady Tyler of Enfield. It is important to remember that Clause 11 will already make an important change from some of the situations identified by noble Lords. The noble Lord, Lord Meston, correctly and graphically identified some of the challenges with the current operation of the system, which is why this measure seeks to bring more children who would otherwise be deprived of their liberty under the inherent jurisdiction of the High Court within a statutory scheme where they will benefit from enhanced safeguards and protections, which many of the amendments in this group are seeking. Turning to these amendments, I reiterate that this measure is intended not to encourage the practice of depriving children of their liberty but to ensure that there are appropriate rights and safeguards in place to prevent children being deprived of liberty inappropriately or for longer than is absolutely necessary. We are committed to reducing the number of children in complex situations as part of reforms to rebalance the system away from crisis intervention towards earlier help and to prevent children’s needs escalating to the point where they need to be deprived of their liberty, and to ensuring that when they are, it can happen in more appropriate accommodation than has been the case up to this point. We are grateful to the Delegated Powers and Regulatory Reform Committee for its scrutiny and have, in government Amendment 57, accepted its recommendation that regulations developed using the powers under Section 25 of the Children Act 1989 be subject to the affirmative procedure, ensuring parliamentary scrutiny and approval in both Houses. Amendment 56 tabled by the noble Baroness, Lady Barran, is about joint funding arrangements between partners for children deprived of their liberty under this measure. The Government wholly agree that care for these children must be jointly funded and delivered through an integrated, whole-system approach, which should include social care, health, education and youth justice. However, we do not wish to restrict pooled funding arrangements in the way this amendment does, tying it to the existence of the Section 25 order. We think pooled funding arrangements would be beneficial to a wider cohort of looked-after children, including those whose order has recently come to an end or who are at risk of needing to be deprived of their liberty. This requires testing first to ensure that the right cohort of children and relevant partners are included. That is why the Department for Education, with NHS England and the Department of Health and Social Care, is leading a national programme to tackle underlying systemic failures and to support local areas to work together more effectively. We are building cross-system integration, starting with the peer collaborative convened by the Nuffield Family Justice Observatory—rightly praised by several noble Lords this evening—which identified key elements for transforming care for children with complex trauma, supporting professionals to stand together so that risk is better tolerated and supported. West Sussex, part of the South East Regional Care Cooperative, is working closely with the ICB to test how a cross-system team can drive integrated support, build an understanding of need and identify gaps in the current pathways across health, social care and justice for this cohort of children. We are not waiting; we are making quick progress in a way that is most likely to be appropriate and solve the problems. Next year we will expand to pilots, where we will evaluate methods of pooled funding, developing best practices that can be adopted and adapted by other local areas. We know that pooled funding works—such as through the better care fund for adults—but legislating now would be premature. We must first test and refine the most effective approach to ensure that the eventual framework enables the right level of cross-system integration and innovation. Amendment 55 on recovery plans, tabled by the right reverend Prelate the Bishop of Manchester, aims to ensure that there are plans to remove restrictions from a child. The Government agree that no child should be deprived of their liberty any longer than absolutely necessary, which is why there are already several existing duties on local authorities in this regard, including the duty to safeguard and promote the welfare of any child looked after by them, and that placement decisions are informed by a care plan based on an understanding of the child’s needs and best interests. Rather than legislate further in this space, diverting local authorities’ attention toward navigating an increasingly complex statutory framework instead of focusing on the child’s needs, we want to strengthen the way in which existing legislation is applied, re-emphasising the need for a care plan that is co-designed between all the professionals involved in a child’s care and treatment. As part of the court application, it is the practice of local authorities to submit the child’s full care plan. The court should be provided with both the restrictions they plan to impose and the action and progress required to end restrictions as quickly as possible. The plan should be formulated with input from all those professionals involved in the child’s care and will be scrutinised by the court and used to assess progress. If the court is not satisfied about the level of detail included in the plan to allow it to monitor progress and de-escalation, the court should require further input from the relevant professionals. Similarly, regarding Amendment 60 tabled by the noble Baroness, Lady Barran, relating to the abilities of independent reviewing officers to escalate concerns on the implementation of a child’s plan to Cafcass, IROs already have the statutory power to perform this function. They are responsible for monitoring the performance of local authorities in relation to a child’s care plan and must consider escalating cases to Cafcass whenever appropriate. This includes issues related to deprivation of liberty. It is therefore not necessary to legislate to expand the legal duties of IROs.