Amendment 65A seeks to appeal restrictions to Section 8 orders for children in local authority care. At present, legislation which aims to ensure the welfare of looked-after children is not being consistently implemented at local authority level. For instance, Section 9 of the Children and Young Persons Act 2008, states that:
“As far as is reasonably practicable”,
and when “consistent with their welfare”, a local authority must provide accommodation for a child that is “in the authority’s area”, yet in reality one-third of children in care are placed outside their local authority’s area. In the case of residential care, almost half of children are placed outside their area.
Similarly, Section 8 of the Children and Young Persons Act 2008 states that suitable accommodation should ensure that,
“if C has a sibling for whom the local authority are also providing accommodation, it enables C and the siblings to live together”,
yet in a survey by the Children’s Rights Director in 2011, almost three-quarters of children in care reported being separated from their siblings. Young people in children’s homes are most affected with, I am advised, 96% being separated from a sibling. Noble Lords will agree that the current situation is unacceptable, yet there is little recourse at present for looked-after children to enforce their rights.
Independent reviewing officers are supposed to intervene if a child's views and welfare are not being taken into account in care planning, and have the power to report cases to CAFCASS, which reports to the family courts. However, this rarely happens in reality. Between 2004 and 2011, independent reviewing officers reported only eight cases to CAFCASS. Independent reviewing officers seem to lack the time, independence and legal expertise to properly ensure children’s rights are not breached.
Similarly, the complaints procedures available to looked-after children are both too lengthy and insufficiently robust to make a difference in serious cases. A survey by the Children’s Rights Director in 2012 found that over one-third of the looked-after young people surveyed said that making a complaint made no difference at all to their situation and over one-fifth said it had made it worse.
Finally, children in care already have access to legal action through judicial reviews for very serious cases. However, while judicial reviews are superior to complaints procedures and IROs as they are truly impartial, robust and fast enough to make a real difference, there are also limits to their effectiveness. First, they can question only the way a local authority has made a decision, not the decision itself. Secondly, judicial reviews are an extremely expensive way of enforcing rights, costing upwards of £30,000. Given the economic climate we are in, it is increasingly unlikely that judicial reviews will continue to be an option for looked-after children. Thirdly, they happen after the event and usually after significant harm has been sustained.
However, there is an important legal right that looked-after children are denied, which could provide them with a means to prevent local authorities acting against their interests. As I am sure noble Lords are aware, Section 8 orders such as contact, prohibited steps and specific issue orders enable children to prevent their parents taking actions that are against their best interests. If a parent attempts to prevent a child seeing a family member or tries to move the child away from their home, the child may, through their solicitor and if that legal representative considers there to be sufficient grounds, ask a court to make a Section 8 order. Though rarely exercised or indeed necessary, the right to do this is a crucial protection for children in difficult situations.
However, at present, Section 9(1) of the Children Act 1989 states:
“No court shall make any section 8 order, other than residence order, with respect to a child who is in the care of a local authority”.
This is a gross inequality for looked-after children, denying them the same rights available to all other young people. Opening up Section 8 orders to looked-after children would give them a clear and direct means of redress if a local authority is acting against their interests and welfare. For instance, a child threatened with an unnecessary move far away from home could ask a court to make a prohibited steps order. The threat of legal action would also provide a clear incentive for local authorities to implement existing policy concerning looked-after children and act in their best interests. The paramountcy principle is enshrined in the Children Act 1989; importantly, this will be driven not by government but by the people whose lives are most affected.
It is not envisaged that large numbers of looked-after children will approach courts to make Section 8 orders against local authorities. However, for those in very serious situations where such legal action is appropriate, this will be an enabling right which could make all the difference. The potential gains of opening up Section 8 orders are very great. By allowing young people to seek help from a court to prevent local authorities acting against their interests we could prevent many disruptive placement moves, which have such a harmful effect on the outcomes of children in care. Opening up Section 8 orders would enable prevention of harm rather than simply redress after the event. It is a vital early intervention measure and this proposal will be an historic step forward for the rights of children in care. I look forward to hearing the Government’s response.