CARE PLANS (Hansard, 20 May 2002)

§ Jacqui Smith
I beg to move amendment No. 259, in page 64, line 2, leave out from "a" to end of line 3 and insert "section 31 A plan"".

§ Madam Deputy Speaker
With this it will be convenient to discuss Government amendments Nos. 260 to 263.

§ Jacqui Smith
This group of amendments is consequential on new clause 15, which we have just debated. They are minor amendments that are required to adjust the existing legislation because of the introduction of the new clause.
As I have explained, clause 113 inserts new section 31A into the Children Act 1989. It sets out the requirement that a court may not make a care order until a care plan has been prepared by the local authority and considered by the court. A care plan prepared under that provision is to be known as a section 31A plan.
We have developed that requirement through new clause 15, and this group of amendments is designed to establish a robust system that includes the process for reviewing care plans, and set down how recourse to court may be sought where the care plan is not being properly implemented. The requirement will apply both to children who are subject to care orders and to those who are accommodated by the local authority.

§ Mr. Brazier
Can the Minister clarify how the amendments will affect, if at all, the frequent complaint from family division judges that the court makes a ruling on a care plan and then, because there is no requirement to come back to court, there is no way of determining whether the local authority has completely ignored that ruling?

§ Jacqui Smith
These amendments, together with new clause 15, set in place a system to ensure that that does not happen. In summary, the court would consider the care plan 65 and the order that it was due to make. Ongoing scrutiny would then be undertaken not by the court but by the independent reviewing officer to ensure that the care plan was being implemented in the way that had been agreed.
Of course, we hope that that scrutiny and independent review would ensure that the care plan was implemented as it should be. In extreme cases, the independent reviewing officer could take the view that that was not happening and that, for example, a child's human rights might necessitate returning to the court for consideration of the fact that the care plan was not being implemented. At that point, the independent reviewing officer could refer the case to the CAFCASS officer, who could then, so to speak, exercise that child's rights.
The case to which I referred earlier raised the concern that sometimes a child does not have a guardian or anyone else who can take up their case. At present there would then be no one who could enforce that child's rights in relation to the care plan. The system that we are putting in place ensures that in the very few cases in which the reviewing function has not worked and the care plan is not being implemented, there is a route back to court to ensure that that child's rights are protected.

§ Mr. Brazier
I am grateful to the Minister for her clear explanation, but I would like to ask her one further question. Let us assume that the system has failed, the mechanism that she has described cranks into place, it becomes clear to the independent reviewing officer that the court's wishes have been ignored, and the reviewing officer then takes action. The crucial question then is: what sanction is there? The problem at the moment is that there is no sanction against the local authority. The Minister has put the mechanism in place, but how does the sanction work?

§ Jacqui Smith
It would be a pretty considerable sanction for a local authority to know that its care plan was being referred back to the court for review and a possible decision about the order. That would be a more significant sanction than currently exists.
Amendment No. 262 will remove from subsection (2) of new section 3 A of the Children Act, as inserted by clause 113, the reference to a care order made on the application being in force. Where a care order is in force, the requirements for the review of care plans set out in new clause 15 will apply.
Amendment No. 263 will insert into new section 31A a new subsection to define a "section 31A plan", which is a care plan prepared for a child in respect of whom a care order is pending.
Taken together with new clause 15, this group of amendments is an important part of the framework that will ensure that local authorities address the needs of children in a systematic and robust way. The elements of assessment and care planning, implementation and review will all be vital if we are to get the corporate parent to act in a proper and flexible way to meet the needs of children.
The aim of new clause 15 and the amendments is to ensure that children, whether they are accommodated by the local authority or are subject to a court order, have a care plan, that the care plan is reviewed at regular intervals, that children have a say in the process, and that the review is overseen by an independent person, who has 66 the responsibility of ensuring that the care plan is being properly implemented. These measures will also require action to be taken where none is being taken, and ensure that the case is referred to CAFCASS to take to court where the child has no one else to act on their behalf and it appears that a local authority's action or inaction is breaching the child's human rights.
These are important steps, which will promote the welfare of children in care, and I commend them to the House.

§ Mr. Robert Walter (North Dorset)
I am neither a smart lawyer nor a dim lawyer, just a simple Back Bencher. As a member of the Special Standing Committee, I have followed the Bill through all its proceedings and I feel that we should be looking to make good law that is understandable to those who have to implement it. Before the Bill leaves this place and goes to the House of Lords, where there are some smart lawyers, I would like the Minister to explain, if she can, why it is an improvement on the current wording for amendment No. 260 to insert "(a care plan)" after the word "plan", which seems terribly clumsy, when the following amendment will delete the words (in this Act referred to as a 'care plan')", which I would have thought were crystal clear.
Surely if we are going to mess about with the wording to make it clearer and more understandable, which I hope is the Government's intention, the wording in line 8 should be "prepare a care plan". We know what a care plan is because we have talked about it, defined it and everything else.
Alternatively, we should leave the wording as it is and the Government should remove their amendments Nos. 260 and 261. It seems unhelpful to the process of better understanding what we are about that we should mess around with the existing wording in proposed new section 31A, on care orders and care plans. The provision had begun to make some sense to me, but if the amendments are accepted it may not make as much sense to those outside this place.

§ Tim Loughton
We should never let my hon. Friend the Member for North Dorset (Mr. Walter) do himself down by describing himself as a mere Back Bencher; his contribution to the Bill throughout all its stages has been considerable.
I have little to say about this group of amendments because the subject was largely covered when we discussed the previous group, and new clause 15 in particular. I can only agree with the Minister that in theory, the system that will lbe put in place is a good one in terms of the regular and ongoing review of care plans. Enabling children to have a say in those plans is an issue that Conservative Members, at least, raised on many occasions in the Special Standing Committee. Children are at the heart of that process, and they have every right to a say in it. In considering the previous group of amendments we debated whether the review should be overseen by an independent person. We also raised various questions concerning the integrity of independence, the reference to CAFCASS, and the fact that action will be taken at the end of the process.
67 There is no point in delaying the House further, as we have no objection to the amendments. They are largely consequential on earlier new clauses that the Minister moved, and to which the House agreed.

§ Jacqui Smith
As I may not have responded as fully as possible to the question that the hon. Member for Canterbury (Mr. Brazier) asked about the sanction, I shall do so now. At the point at which a case is referred to CAFCASS, it can use existing remedies under the Children Act 1989. For example, it can apply for discharge of the care order, or for contact between the child and another person. Under human rights legislation, it can seek to injunct the local authority from taking a particular step, such as removing the child from an established placement. It can also seek a declaration that the local authority's plans are contrary to the child's human rights. That would require those plans to be rethought, and the child might also claim damages in respect of the impact of a local authority's action or inaction. Those are considerable sanctions.
The answer to the question asked by the hon. Member for North Dorset (Mr. Walter) is that there are two different types of plan. Clause 113 relates to a plan in which a care order is pending, whereas a plan under proposed new section 31A relates to the looking after of a child by the local authority, subject to a care order. After that clarification, I am sure that the hon. Gentleman will feel able to support our amendment.
Amendment agreed to.
Amendments made: No. 260, in page 64, line 8, after "plan" insert "("a care plan")".
No. 261, in page 64, line 9, leave out from "child" to end of line.
No. 262, in page 64, line 10, leave out from "pending" to "the" in line 11.
No. 263, in page 64, line 20, at end insert— '(6) A plan prepared, or treated as prepared, under this section is referred to in this Act as a "section 31A plan"'.—[Jacqui Smith.]