Here at Researching Reform, we are passionate advocates of the House of Lords, which continuously fights for the rights of families and children, and often shows enormous courage in the face of a disinterested and self serving Government.

The latest debate on the Children And Social Work Bill in the Lords is a powerful example of this. Despite Government refusing to take up many of the positive amendments they’ve put forward, they keep going.

The first amendment in this discussion, moved by Baroness Wheeler, looks at issuing a code of practice on whistleblowing arrangements in the context of looked after children. Amendment 52 reads:

52: After Clause 28, insert the following new Clause—“Whistleblowing arrangement in relation to looked after children and children at risk The Secretary of State shall issue a code of practice on whistleblowing arrangements which can be taken into account by courts and tribunals when the issue of whistleblowing arises in public bodies providing social services and children’s services, and local authorities, in relation to looked after children and children at risk.”

This amendment is designed to further protect whistleblowers exposing malpractice and wrongdoing. However, the call for a statutory code was not accepted. Viscount Younger of Leckie, an Official spokesperson on Higher Education (still an odd department to be looking after child welfare matters overall), took the view that current employment legislation was sufficient to protect whistleblowers but did agree that another amendment (53B) offering protection for whistleblowers would be pursued. Amendment 53B protections apply to people seeking employment with specific public bodies in roles relating to local authorities’ children’s social care functions. These protections would apply to the whole of Great Britain in line with other employment legislation.

The next amendment discussed was 53A, and was moved by Baroness Armstrong of Hill Top:

53A: After Clause 28, insert the following new Clause—“Post-removal counselling for parents and legal guardians After section 19 of the Children Act 1989 insert—“19A Post-removal counselling for parents and legal guardians Where a child is permanently removed from the care of a birth parent or a child’s guardian further to the powers under section 31 of the Children Act 1989 (care and supervision orders), a local authority must, so far as is reasonably practicable, provide a counselling service and commission therapeutic support for the parent or guardian of the child, in order to help them to keep any future children.””

This is a particularly compelling amendment, and shows the Lords actively pressuring the government to find ways of keeping families together. The phrase ‘so far as is reasonably practicable’ will be used as an opt-out clause by local authorities to avoid this obligation, so the courts and judges will have to bear that in mind, but The Lords make a very strong argument for public agencies keeping children out of care and Baroness Armstrong’s views are very much worth a read on this.

One of our favourite judges Nicholas Crichton, also gets a mention for his pioneering work with the Family Drug And Alcohol Court, which has been phenomenally successful in reuniting children with their families. The Earl of Listowel goes on to ask Parliamentary Under-Secretary of State for Education, Lord Nash if he will write to him and confirm FDAC’s continued funding. Lord Nash confirmed during the debate that he would. (We wrote to the Earl to ask if he might share Lord Nash’s response with us once he receives it and he has very kindly agreed to share the letter with us, so we will post it on the blog in due course).

Another interesting amendment put forward by Baroness Thornton, is Amendment 53C, which prevents doctors and other health professionals from charging for evidence of domestic violence or risk of violence, for parents in need of legal aid. At the moment, if you’re a victim of domestic violence and need legal aid, you have to show evidence of that violence, such as a note from your GP, or a refuge manager – a measure which has sparked a huge backlash from child welfare campaigners and domestic violence charities. The proposed amendment reads:

53C: After Clause 28, insert the following new Clause—“Legal aid: families with children experiencing domestic violence In Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, after paragraph (2) insert—“(2A) A general practitioner or other health professional may not charge for the provision of evidence of domestic violence or risk of domestic violence, where the domestic violence has taken place, or is at risk of taking place, in a family which includes children.””

The Lords make a strong case for removing what is effectively yet another barrier to justice in domestic violence cases, as many victims cannot afford to pay for this evidence. Not surprisingly, the Law Society has also backed this measure, along with several MPs. The Lords present during the debate mostly backed the amendment too, though Lord Nash once again offered a dissenting opinion and cautioned that a failure to allow for discretionary costs could lead to GPs refusing to produce evidence altogether.

And as might be expected, Lord Nash’s own amendment, amendment 54, relates to the controversial clause 29 in the Bill which exempts local authorities from certain duties and responsibilities set out in children’s social care legislation.

Amendment 54 reads:

54: Clause 29, page 20, line 25, at end insert—“( ) Regulations under this section may not be used so as to remove any prohibition on a local authority in England arranging for functions to be carried out by a body whose activities are carried on for profit.” 

This amendment would go in after this section:

(2)The Secretary of State may by regulations, for that purpose—

(a)exempt a local authority in England from a requirement imposed by
children’s social care legislation;

(b)modify the way in which a requirement imposed by children’s social
25care legislation applies in relation to a local authority in England.

Lord Nash defends the government’s decision to allow this clause, and outlines the usual suspects: concerns about over-regulation, the need to try a different approach to children’s services and a robust monitoring system to ensure that new ideas are not putting children at risk.

Worth a read is Lord Ramsbotham’s brilliant dissection of this clause and why it’s completely pointless when it comes to encouraging innovation, which is our view exactly. Interestingly, he also says that the clause breaches basic constitutional and legal principles:

“It is not only wrong but totally unnecessary, in view of existing arrangements, to process proposed innovation because new ways of working can already be tested within the existing legal and regulatory frameworks.. Therefore I contend that, however outwardly reasonable the processes proposed by the Government may seem, they do not alter the need to leave out Clauses 29 to 33 of the Bill for reasons of constitutional and legal principle…

All legal duties and obligations placed on local authorities by children’s social care law are ultimately enforceable by the courts, meaning that if a local authority fails to meet its statutory obligations, the young person or family concerned can take legal action to ensure that the protections laid down by Parliament are put in place, but the courts will be unable to enforce the rights of the young person or family concerned if a local authority has received an exemption from acting in accordance with the law. I therefore ask the Minister how the courts are expected to respond where a young person or child in a particular local authority area is clearly disadvantaged by the arbitrary disapplication or modification of the law as it is applied in all other parts of the country.”

The full debate is worth a read if you have a thousand Digestives and three hundred tea bags to hand.