25
Examination of witnesses
Kelly Tolhurst MP, Sophie Langdale, Lord Bellamy, Neal Barcoe, Dean Russell MP and Mike Warren.
Q183 The Chair: Good afternoon, everybody. Today we have the final public evidence session of the Lords Select Committee looking at the Children and Families Act 2014. The session is being broadcast online and a transcript will be taken.
I would like to say a couple of words by way of introduction before asking the Ministers briefly to introduce themselves. We are very grateful indeed to you, Ministers, for coming. We recognise two things: a lot is going on out there, and you have all been in post for only a fairly limited time. We are none the less very keen to hear your thoughts on the issues that have concerned us most as we have gone through this inquiry. We have heard from your officials, and that has been extremely helpful, but obviously today we are very keen indeed to hear from you.
Before we start with the first question, would you say briefly what your portfolio covers? Ms Tolhurst, could I invite you first?
Kelly Tolhurst: Thank you, Chair. I am currently the Minister of State for Schools and Childhood.
Lord Bellamy: I am Parliamentary Under-Secretary of State in the Ministry of Justice. My portfolio broadly covers family law, civil jurisdiction and quite a number of other somewhat miscellaneous topics.
Dean Russell: I am the Minister for Enterprise and Markets. My role, among other things, covers labour markets across Great Britain.
Q184 The Chair: Thank you; that is really helpful. I would like to kick off with a fairly general question. If there are any general points you want to make, this will be your opportunity.
It comes down to the fact that in the work we have done over the last nine months or so, one of our key conclusions is that very little priority or effort, for whatever reason, has been given to implementing the Act and indeed to measuring the impact of the Act. There is almost a sense that it went on to the statute book, people went off to other things, and it was forgotten about.
We are very keen to have your take—recognising that you have been in post only a limited time—on why there was no real, sustained follow-up of the Act, and on whether your departments have processes in place to track not just the implementation but the impact of legislation, whether it is actually achieving the policy objectives it was designed to do, and indeed how you might improve monitoring and implementation of legislation in the future.
My final point, if I may, is that we were very conscious that after eight years we had to ask for a post-legislative memorandum setting out what had happened on the Act when in the Cabinet Office guidance for conventions it says that these memorandums should be available within three to five years. I rather suspect that if this committee had not been set up we still would not have it. Ms Tolhurst, may I start with you?
Kelly Tolhurst: Thank you, Chair. First, coming into this portfolio as a brand new Minister, I welcome the opportunity to come here today. As I embark on the process of getting under my brief and bringing about what I hope will be reforms in the children and social care area as we move through the next few months, this is quite an important process for me.
To try to answer your points, and please come back at me if you do not think you are getting the right response, in general I would say that the Act, which was broad and far-reaching, covered many different areas. One thing I have learned since being in the department is that it takes implementation and evaluation very seriously.
I understand that there was no formal post-legislative scrutiny, but my feeling is that in the department we have a number of measures that we are monitoring and assessing all the time, particularly the impact and the delivery of local authorities. That is something on which we focus all the time. Obviously, there is the Ofsted regime in relation to the performance of local authorities and the inspections that take place, and the intervention we take as a department.
While I would say that you are absolutely right, and I can understand the committee’s concern that there was no time given until the committee asked for scrutiny of the Act, as a department we are looking at some of the elements in that all the time as business as usual, to make sure that we are testing our policies and improving them where we are able to.
The Act came into play before I was elected a Member of Parliament, so you are right that there has been enough time for us to look at it. I think it has achieved many of its aims or is working towards them and has given us a framework for some of the elements that we might be bringing forward with regards to reform in the coming months.
The Chair: As a specific follow-up, do you feel that there are now processes and procedures in place in the department to ensure that, when legislation is on the statute book, there is a systematic way of following it up? One thing we found when we looked at the memorandum was that there were places where, frankly, provisions had not been implemented or, in other cases, there were many instances where there was no data to see what the impact had been and, where there was data, it was data that was routinely collected by the department; it was not specifically for the purpose of implementation of this Act. Do you feel that you now have more robust procedures in the department?
Kelly Tolhurst: Excuse me, Chair. I hate to use this as an excuse, but purely because of my time in post it is something that I will take away and maybe come back to you. I would not be able to give you a clear answer now. The only thing I would say to you is that the data and the information in regard to how I am trying to formulate ways in which we can improve outcomes for looked-after children and families are things I am looking at. It is informing my thinking going forward.
The Chair: Thank you. We would be grateful if you could come back. I suspect we are going to have some fairly strong things to say about the implementation process. It would be helpful to have the department’s perspective on that.
Lord Bellamy, I would like to get your perspective on the implementation of the Act and the extent to which it has been a priority within the Ministry of Justice for implementation. Specifically, do you feel that there has been real political will to follow up on the Act? Do you feel that accountability is as sharp as it should be?
Lord Bellamy: It is a bit difficult for me to comment, as Ms Tolhurst has said, on the past, but I assure you that, as far as the future is concerned, this Act has come to the top of my priority list. There are a number of issues that we are going to discuss this afternoon that I and the department, working very closely with the Department for Education and the president, are going to grip. I hope that will be of some reassurance to the committee, although we will have to see what we can deliver.
I will briefly make a couple of general points that will colour some of our discussion. One cannot underestimate the impact of Covid, generally speaking, on the justice system. We are now in the post-Covid recovery period, but I do not think we have yet fully understood as a society the actual effect of Covid in all sorts of ways. I think we are still grappling with that and working out what the solutions are. We will come to that in more detail in a moment.
On whether the Act had an impact in the first place, I would say it had a very substantial impact. We are going to discuss in due course the 26-week limit in public law cases. The introduction of the Act had the effect, by 2016, of reducing the time lag to 26 weeks in about 67% of cases. It has slipped since and has slipped further following Covid. That is the point that I think we need to wrestle and grapple with in this committee and in the discussion.
The introduction of the MIAMs, the mediation processes, and various other things, was important. As far as the ongoing monitoring of the Act is concerned, the ministry has taken the view that the way to do that is through the Family Justice Board and its regular quarterly meetings. That has been the process by which we have kept, as it were, an eye on progress.
The Chair: Thank you for that. It is good to hear that the Act is now a priority. I would certainly like to come back a bit later to the 26 weeks, and indeed to the role of the Family Justice Board.
Mr Russell, could I have your department’s perspective, please?
Dean Russell: Absolutely. Thank you so much for the opportunity. I echo the earlier comments with regard to the opportunity to hear from you, hear your questions and make sure that they are accounted for.
I will talk to two pieces, if I may, in the BEIS parts of this Bill. One is about shared parental leave and the other is about flexible working. From a departmental perspective, we have not yet published it, but we did a shared parental leave evaluation. We hope to publish the findings of that soon. I know that politicians often talk about “soon” and never give a date. I apologise for not doing that, but I hope to do so as soon as I can.
We produced a report on flexible working and a post-implementation review. I do not want to echo too much what colleagues said about coming in new, but I think this Bill was very much ahead of its time in some ways when we look at the post-Covid position we are in as a society. I think that people are far more mindful now about flexible working, in particular around shared parental leave and the fact that society is becoming far better at considering the ability for the father to look after the child and have that as an equal approach in society that perhaps even just a few years ago was not seen in quite the same way.
Obviously, we will go through questions, but on the departmental side of things there are two parts, in my mind. One is how society is caught up, in some ways, to the benefits of the Bill. We are very mindful of that and what it means for the future. It is also about how we properly analyse it. There were challenges which were quite specific to Covid around flexible working and people needing to work from home, whereas now we are in a space where perhaps they do not need to, but they may want to. We need to make sure that in the review on flexible working that has been published, and the one on shared parental leave that will be published, we really understand the nuances of that, implement them and take them forward where possible. We must not go down the route of making it so that government is legislating too strongly about what business needs and what the employee needs. Getting the balance right is key. I hope that throughout this session we can cover that in some more detailed questions.
The Chair: Thank you all very much for that introductory session. I am sure we will pick up and return to all the points that you have mentioned. I invite my colleague, Lord Mawson, to ask his question.
Q185 Lord Mawson: Do you feel that the current system for post-adoption contact is fit for purpose? Do you believe the letterbox contact is adequate given our online society, and should more be done to modernise contact?
Kelly Tolhurst: Thank you very much for your question. I believe that the clause has achieved the aims of providing clarity on contact arrangements. The Act made it clear that contact should be considered case by case and should happen only when it is in the best interests of the child. Research demonstrates the importance for the child’s well-being of continuity of relationships, particularly with trusted adults. However, the interests of the child should always come first.
With regard to letterbox contact, we understand from some of the feedback we have had that it is variable, depending on which authority and in which regional adoption agency it has taken place. We are funding a pilot for a new IT system called letter swap, where emails can be sent by a secure link. This is being done with the regional adoption agencies.
One thing I would say about contact with children going into the adoption system is that the Act gave the ability to streamline it in the court process. We have now seen that contact is a key feature with regard to the courts. Some of the experience I have had directly with children who have gone through the process is that, while it is beneficial, we can always do better and move forward. That is the work we are doing internally, working with colleagues in departments, to see how it can be improved for those young people who are affected. That is a starting point.
Lord Bellamy: I do not think the Ministry of Justice has anything to add.
Kelly Tolhurst: To follow on, we had the national adoption strategy towards which the Government provided £160 million of funding. In the outcomes for those young people, we are making sure that we are able to support them in access to the information they need. A key element is that with social media and the way that the world has moved on, with people able to find each other or make contact through non-formal routes, we need to move forward and develop new ways in which to tackle that to make it satisfactory for the child and family members. That is a key challenge for us going forward and obviously something that needs more work, which I hope the adoption strategy and the funding will be able to overcome.
Baroness Bertin: All the evidence we heard on letterbox contact made the point that it is so outdated. Social media and the way that people can contact each other now makes a bit of a joke of it. I would reiterate that.
Kelly Tolhurst: I agree. Personally, I work with young people who have been contacted by Facebook. It puts pressure on carers and adopters. I quite agree that we need to get with 2022 and come up with policies that support people, but support those young people because, ultimately, it has to be about what is in the best interests of the children.
Q186 The Chair: Thank you very much. I would like to move on to Lord Bellamy. This is about the 26 weeks, which is a particular interest of mine; I worked as part of the family justice system for a number of years.
I am very conscious of how important the 26-week target is, particularly for children. We were very struck by a quote from one of our expert witnesses, who said: “For a six month-old, 26 weeks is their whole life”; it is so important for children, particularly for young children.
First, I would like to know whether the Government are still committed to the 26-week target. I would like to know what you see as the biggest challenges in meeting it, given that we are a long way off now. While I take everything you say about the pandemic, could you address the fact that the 26-week target has been getting worse and more off target ever since 2016? That is four years before the pandemic. All sorts of things were happening that, frankly, cannot be blamed on the pandemic. Could I ask you to respond on those points, first?
Lord Bellamy: Thank you very much indeed, Chair. The Government are entirely committed—absolutely committed—to 26 weeks. I can say that without any qualification at all. It has to be borne in mind, though, that the 26 weeks is only an average. The more we can do to get down below that, the better.
You are quite right, of course, that since 2016 the figures have been deteriorating. That was pre pandemic. Before the Act came in, the average was around 38 weeks. It then came down to 26 weeks and now it is ticking up again. It is currently 49 weeks, which is completely unacceptable, in my view. We very much need to do something about it.
It is quite difficult to pinpoint exactly why this is happening. You are quite right, Chair, that actually it has got worse in the last two years, almost post pandemic, which is why I said at the outset that I am not sure we have yet completely understood the change of social attitude and approach that is prevalent now in a post-pandemic world.
However, it is probably not the result of the absence of available sitting days. We have increased our sitting days very substantially in the last couple of years. I will say a little more about that in a moment. Among the factors that might be affecting the situation are the need to complete the relevant pre-proceeding work in local authorities, the difficulties of staffing and other difficulties facing social services. There are great efforts going on, I am sure, in the Department for Education to improve that.
There are delays in finding and appointing experts. There is a shortage of experts. There are challenges in listing and a shortage of available judges, despite a very intensive judicial recruitment drive in 2021-22 and an increased number of days for fee-paid judges to sit. We are still finding it difficult always to match the available judicial resource to the need.
It is partly a feature of this work—as distinct from crime, for example—that once you get into a backlog it feeds on itself. More things happen and then you have to have more hearings. We have seen an increased number of adjournments, an increased number of hearings per case and a fall in productivity in terms of numbers of cases done per day by the courts, but the situation varies quite dramatically in different parts of the country.
Part of my job, and our job collectively, is to get to the bottom of the specific reasons in specific areas and address them. It may be a shortage of judges over there, it may be a local authority problem over there or it may be an expert problem over here. We need to understand that better.
What we are doing as regards the Family Justice Board, which I mentioned a moment ago, to try to grip this, is that we are planning to come to the board at the end of this month with a detailed plan, with specific KPIs and comparative dashboards across different regions of the country, and other measures, working very closely with the president and with the Department for Education, to devise a series of measures to get this backlog down again to 26 weeks. My personal objective is to make a very significant dent in the waiting list during the course of 2023.
The Chair: It is very good to hear that the Government are committed to the 26 weeks. I think you were saying that the current situation is simply not acceptable and that you are working on it. That is good to hear.
Having looked back through the minutes of the Family Justice Board over the last few years, I think it tends to meet twice or a maximum of three times a year. Because of the churn and turnover of Ministers, there tends to be a different chair a lot of the time. First of all, do you feel that it meets frequently enough? Do you receive papers that really give you a feel for what is happening in different areas, because there is a lot of regional and local variation, and what are the precise problems that need to be addressed in each of those areas?
Lord Bellamy: You are completely right. I do not think I have, myself, had the pleasure yet of meeting the Family Justice Board, and there has been quite a turnover. Kelly and I will drill the board when we next meet it at the end of October. I think we have to move away from a general overview to a very much more detailed appreciation and attack on individual areas and individual situations.
My personal objective is to visit every one of the regions between now and Christmas, kicking off in London. London has the most difficulty. London and the south-east are behind other parts of the world. Some areas—Derbyshire comes to mind as a particularly good one—are making very great efforts, but we need to understand the various considerations for each specific case. On your general point that we need to get down into the weeds in much more detail, I respectfully agree.
The Chair: Thank you for that. It is very good to hear that you are going out to visit. A couple of colleagues want to come in, but can I briefly press you on this? The evidence we received, both from the chief executive of Cafcass and from the President of the Family Division, was that resources are a real problem. In the courts there are particular issues about judicial time not being used well because, frankly, they were doing the job that a clerk would do, if there was a clerk available, which there is not. Cafcass is really struggling with resources and not matching demand. Does the Family Justice Board also look at resourcing issues?
Lord Bellamy: If it has not done so sufficiently, it certainly will do so going forward.
Kelly Tolhurst: I am sorry to butt in. My first Family Justice Board, and that of Lord Bellamy, will be on 26 October, which is next week. We have an opportunity to shape that going forward under our leadership in this area, I hope. Could I comment on one of the points that Lord Bellamy raised?
The Chair: Could you do it briefly, because other colleagues want to come in?
Kelly Tolhurst: Okay. That is fine.
Lord Brownlow of Shurlock Row: Lord Bellamy, a short time ago you gave a personal commitment to make a significant dent in 2022-23 in the variance between 49 weeks and 26 weeks. Could you quantify that for us, please?
Lord Bellamy: Not at the moment, Lord Brownlow.
Lord Brownlow of Shurlock Row: No indication at all?
Lord Bellamy: A very substantial reduction would be my personal objective, but I cannot yet tell you—
Lord Brownlow of Shurlock Row: Would you say it is 10% or 20%? You must have an aspiration.
Lord Bellamy: It is very difficult to say. Let us leave it at the words “significant and substantial”. Like so many other things in this world, as far as the Ministry of Justice is concerned, very many things depend on other agencies and people, whether it is the local authorities—
Lord Brownlow of Shurlock Row: Would you be wiser to say “a reduction” rather than “a significant reduction”? I am trying to manage—
Lord Bellamy: Expectations.
Lord Brownlow of Shurlock Row: The expectations of everybody, not just us in Parliament.
Lord Bellamy: It would probably be wiser, I agree with you, but if I am allowed to express a personal objective it is something more than just “a reduction”.
Lord Mawson: I wonder whether the answers to the last two questions are a symptom of something rather more serious. We have talked to a lot of people and have been listening to people at the front-edge operating system, and we get a sense of a fundamentally broken and fragmented department and system that are not working at quite a number of levels. If you look strategically at what is happening—we have had something like 13 Secretaries of State in the last decade, which is not your fault, and the recent situation of the Permanent Secretary looking for another job—you see that there is a serious problem that someone needs to get a grip of. We need continuity. What do we do about that? The sense we have gained from much of the evidence and the conversations that we have had is of a system and a department in quite a bit of difficulty.
Lord Bellamy: I accept that there are difficulties. To make the obvious remark, it is quite easy to think of this as a system, but it is not a system. You have the judges, rightly operating independently; the DfE and local authorities, two separate stakeholders, also operating independently; the Ministry of Justice in the middle; Cafcass; the lawyers; everybody. It is not quite as bad as in the criminal justice system, where you have in addition the CPS and the police, but it is very difficult to operate as a system.
Having come to this fairly recently, I believe that we have underused the one co-ordinating body we have, the Family Justice Board, and we have particularly underused local family justice boards. That is where you have to start; you have to start locally. The famous words of Aneurin Bevan, that when you drop a bedpan in Tredegar it is heard in Whitehall, do not work here; you have to do it locally. You have to go region by region, and get it organised in a way that works better.
Q187 Lord Bach: Lord Bellamy, your expertise on criminal legal aid is of course very famous now, but I want you to cast your mind back to LASPO, of 2012, and the consequences for private family law in particular. I have a general question to start with. In your time as Minister, what assessment have you made of the impact of legal aid cuts on private family law?
Lord Bellamy: Let me put it this way. If I may be permitted at an early stage of my ministerial job to speak personally, it has had quite a difficult impact on family private law. First, the absence of any advice at all for a lot of people is a difficulty. A particular impact, which, as I understand it, was unexpected at the time, is the effect on mediation. The former family law solicitor was the conduit for sending a lot of parties to mediation. That conduit has not exactly dried up but it has diminished, because you can still get legal aid for mediation, but there is no lawyer to say, “Why don’t you go to mediation?” That has been partly ameliorated by the good innovation by the ministry to introduce a voucher scheme for mediation, which is now helping about 12,000 families a year to have a mediated outcome.
Where mediation happens, the results are pretty good. Roughly speaking, about 70% of people who mediate finish up managing to settle. Not enough people go to MIAMs to make them effective, but for those who do, there is quite a good success rate. We need to work on that area. To finish that train of thought, the ministry is seriously considering further measures to make reasonable efforts to mediate more or less obligatory in family law cases. I hope that we will launch a consultation paper about that in the fairly near future. You cannot order people to mediate, because it is not fruitful to do so, but you can encourage, give incentives and generally better educate people to go down a mediation route. I hope that that will reduce the burden on the court system and lead to earlier resolution.
If I may pick up your comment on criminal legal aid, Lord Bach, my personal view is that the more you can do early on in the proceedings, the better. That will avoid trauma and delay and will generally make a disagreeable process a bit less disagreeable. That is the sort of focus that the ministry is planning at the moment.
Lord Bach: Thank you very much for that answer, which is music to my ears, to some extent, because the universal evidence that we have had from a wide range of people, including, if I may say, the present president and his predecessor, is that something is needed in terms of early advice. I know that you and your immediate predecessor have become interested and involved in that issue. The general consensus seems to be, and I put it to you that it is, that the value of early advice is not just for the people involved, who should be entitled to some early advice so that they know where they are, but that, in the end, it may well save a great deal of both heartache and funding for the state, so I am delighted to hear what you propose.
I put to you the proposition that, although of course you want more mediation—we always want more—it has been proved pretty clearly that cutting legal aid does not lead to more people taking advantage of mediation, as was expected, and therefore it is essential, whoever gives this advice, that it should be legal as well as anything else. It ought to be preliminary advice. If the department were to move to that, and it would obviously have to be on the basis of having no means test, and if the Government were serious about it, it seems to me that it would be a finance saver as well as a much more just system than we have at the moment. Do you agree with that proposition? How close are the Government to saying anything about this?
Lord Bellamy: Speaking personally, I broadly agree with that assessment. On the question of how close the Government are, I cannot quite say. The Government have a lot of things on their plate at this precise moment, but we came very close to it under the previous Secretary of State, and I have no reason to suppose that the present Secretary of State is in a different position.
As you rightly say, we have to sort out the cost and work out how we will fund it. It is true to say, for example, that the present family voucher scheme, where you get £500, is considerably cheaper than a contested case, so there are significant resource savings if this can be made to work.
I will sound one note of caution, if I may. If we are to go down the mediation route, it is essential that the public, the ministry and the users have confidence in the system, which means that you have properly trained mediators and a proper scheme through the Family Mediation Council, for example, or other organisations, to ensure that people have confidence in the system. We have a mindset at the moment, which is very understandable, that you ultimately need some sort of court-based order to be absolutely secure in what you have agreed, so you have to build that into the system. I personally say to myself that we have to be very careful before we outsource a major part of the justice system to private interests, as it were.
All that said, we can do more, and it is probably a good use of public resources to invest further in mediation and early resolution of these very difficult cases.
The Chair: Thank you very much. To clarify, can I assume from your final comment that you would be in favour of regulating mediators if they were playing this role?
Lord Bellamy: It is an issue we need to examine very carefully. “If it moves, regulate it” is the knee-jerk reaction of the modern world. These are private individuals and organisations and there is quite a lot of jostling for position within that little sector, so we need to think through how we will do it.
Q188 Baroness Bertin: Thank you for coming today. Can I ask the panel about the very controversial issue of presumption of contact, which features in the Act? We have taken a lot of impassioned evidence from both sides, and it is clear that neither side is very happy with how it stands in the Act. The Act is all about the welfare of children, and I certainly would not question the fact that it is far better for a child to see both their parents, but of course, in some cases, when there is an abusive or a violent parent, it is not. I want to test your view as to whether you think that, as it stands in the Act, the presumption angle should stay or be repealed or changed, and whether presumption has in some cases trumped the welfare of the child.
Lord Bellamy: Our answer is as follows. The harm panel report in November 2020 suggested that we should seriously review the presumption of parental involvement. There are several strands to what we have been doing about that since. We have not completed the review yet, although that is another thing that I hope we shall do fairly shortly.
The first strand is a review of the literature, which we have completed and will publish in due course. The second strand, which is almost complete, is some qualitative research on the actual experience of parents in the system, particularly ethnic-minority parents or families where there has been sexual abuse either of the child or of another family member, and how that has been coped with. That is being carried out by a well-known charity, Mosac, in collaboration with the Race Equality Foundation. I hope it will be complete soon.
The third strand is an analysis of actual judgments, where we try to work out what the judge is doing in particular cases, because there is a lot of anecdote floating around and it is quite difficult. That has been conducted by a well-known social research agency, NatCen Social Research. It has proved difficult, because it is difficult to find in the database of transcripts of judgments exactly what you are looking for. It has taken longer than we supposed, so that bit of the research has fallen a bit behind.
Baroness Bertin: Can I come back on that? Clearly, another huge problem that we are finding is that we just do not have the data, so it is hard to understand what is going on. I am pleased to hear that you are addressing that, but will it be changed going forward?
Lord Bellamy: I do not know; it depends what data comes out of it, but we felt that it was very important to try to get better data. We have several other sources of information that we are working on in that respect. You may have heard about the pathfinder projects we have been doing in north Wales and Dorset, about a completely different approach to family proceedings—a much less adversarial approach. Those are going forward, including every child having a court adviser to make sure that their wishes and thoughts are presented to the court, et cetera.
Focus groups are being organised with the Nuffield Foundation, Cafcass and Cafcass Cymru on some of those points. We are also able to draw on a very important feature of the Family Justice Board, which is the Family Justice Young People’s Board, a subdivision of the board that consists of about 50 children and young people between the ages of seven and 25 who have been through the mill and experienced all this. We are working through all this, but it is extremely difficult at the moment to come to a conclusion as to which way it should go.
Baroness Bertin: Okay, understood. I hope that review will come soon.
Lord Bellamy: I am sorry that it is work in progress and that we have not gone further faster, but that is where we have got to. I can only explain where we are.
The Chair: Thank you. I am conscious that we have other Ministers and other important parts of the Act around adoption and employment rights to turn to, but before we move on, can you clarify whether the review will cover the impact of the presumption on cases that settle out of court?
Lord Bellamy: I am not completely sure.
Neal Barcoe: It obviously will not be covered by the judgment analysis, but I hope that the qualitative assessment will consider it. Again, evidence is very hard to come by in those cases. I think it is covered in the literature review.
The Chair: Okay, thanks very much. We have a final question on family justice. I am sorry, do you want to come in, Ms Tolhurst?
Kelly Tolhurst: I want to mention what we are actively doing around the 26 weeks, because I recognise that the committee is interested. Last week, I visited a family court; it was one of my first visits. We recognise the need to make sure that, when local authorities bring proceedings to court, they have done all the necessary work and everything is in order so that they do not—excuse the expression—waste the court’s time having to adjourn, and instead move forward. The DfE has worked to develop a public law toolkit for local authorities and has invested money to train and try to embed that within local authorities.
I am not saying that it is the answer, but it is something we are working towards to make sure that proceedings are necessary and timely, quite rightly for the courts, which have to deal with frustrations. When local authorities bring a case that cannot be decided on that day, and they have to adjourn it, that has to have an impact on the 26 weeks. I fully accept—I think all of us here do—that that is not good enough for the children. Having seen it in practice in real life, we need to get a grip on this. I am with Lord Bellamy: reducing this timeframe is a real focus for us.
The Chair: Thank you very much, that is good to hear.
Q189 Lord Brownlow of Shurlock Row: Lord Bellamy, you started to answer my point, actually. Throughout our evidence gathering this year, we have heard the voices of children, and their feelings, and it has been quite insightful for us. What are the Government doing to ensure that the voices of children and their feelings are taken into account in the family justice system?
Lord Bellamy: I have already begun to answer some of those points. It is extremely important. We should ensure that in every public law case there is a specific children’s guardian who is responsible for ascertaining and making sure that the views of the child are fully respected and known to the court. Cafcass can also be involved in private law cases if the judge so directs; the guardian arrangement is through Cafcass.
I have already mentioned, as part of our response to the harm panel report, the various steps we are taking through the pathfinder project to find ways of making the whole thing less adversarial and making sure that the views of the child are heard in the process, and that it is a much more investigative, rather than adversarial, process. That is the essential principle behind it. The issue is very much on our minds, and I hope that the judges themselves take active steps to find out what the children want. When I used to do family cases, the judge always used to see the child, and sometimes sent a note to get the kid out of school, saying, “Come round to the court and have a chat. I’ll take off my wig. Come into chambers, have an orange juice, and tell me what you want to do”.
The Chair: May I briefly follow up on that? I very much agree with you. When I was active in the family justice system, I saw that it was when the judges themselves took the initiative to talk directly to the children and young people—so long as they were of sufficient age—that they really felt that their voice was heard, and when the judge wrote a letter afterwards explaining why the court had taken its decision. I think the children recognise that they are not the final decision-maker, but they want to understand the rationale, and that really impacts on them. Do you agree with that? Do judges need to be encouraged to do more of it, or do they do it anyway?
Lord Bellamy: If I may express a personal view, I agree with that, on a personal basis.
The Chair: When we had the chief executive of Cafcass in front of us, she said: “From our perspective, the voices of children are still quite quiet in the system. It is still a very adult-dominated system, certainly in private law”. Do you want to react to that statement?
Lord Bellamy: I do not particularly want to react to that statement at this stage, because we are still in the process of working on that aspect.
The Chair: Right, thank you very much. We will turn our focus now to the adoption part of the Act.
Q190 Lord Storey: My question is about kinship care. We have heard that research and data show that kinship care can perhaps be more successful. We have heard from kinship carers who say that they feel overlooked, neglected and, of course, ineligible for much of the support offered to adoptive parents. Is it fair that the support available differs so substantially based on what type of legal order a child is placed under?
Kelly Tolhurst: Thank you for the question. You are quite right. Kinship carers can play a significant role in where our young people are placed. Kinship is part of the mix of finding loving and solid homes for our young people. Prior to being elected, I did a lot of work with looked-after children, so I have seen some of the examples first hand, with young people being placed with other family members, not under a special guardianship arrangement or in a foster placement. I understand the impact on and the challenges faced by some of the people taking on that responsibility to care for their child, whether it be an auntie, uncle or grandparent. I understand that for some of those people the burden is high, but their love and need to do it are great.
Therefore, as a department, I feel that we need to move forward and develop good policies for kinship carers. That is a key element that I have been looking at on the back of the Independent Review of Children’s Social Care and in the work that we are doing internally in the department to respond to it, and towards an implementation strategy for children’s social care reforms. We are already working with the charity Kinship, investing £1 million for 2022-23 for kinship carers to formulate over 100 different kinship support groups throughout the country so that they can access support and have that connection.
I recognise that there is more to do. I agree that we need to make sure that where it is absolutely right that a child is placed in a kinship arrangement—if we want to call it that—we support those individuals. From what I see, it is about making sure that the child and the family are able to access the right support—all the support that a child in foster care has. It is not always monetary: it is about therapy, counselling and a whole range of different areas. We have taken that very seriously as a department, as I do, because I recognise the importance of that area.
Lord Storey: I am very grateful for your reply and very much welcome the comments you have made. You talked, quite rightly, about carers being given support with counselling, therapy and other things. Where does direct financial support figure in your thinking?
Kelly Tolhurst: We are exploring that at the moment in regard to the reforms. If I can speak very frankly to the committee, reducing the costs of the best outcomes for looked-after children cannot be used as an option. I feel very strongly about that. Obviously, we are working on that at the moment, but I am very clear that this should not be a cost-saving exercise for local authorities. It is my personal view—I am sure it is that of the department—that it should not be used as an exercise. We need to make sure that we support family members who do this to keep the young person with them.
Kinship carers can experience a number of different challenges; if they have birth children in the home, for example. There is a whole different dynamic with a kinship arrangement than there would be in a foster placement, for example. Although I am not an expert and I do not purport to be, I understand the challenges. Finance needs to be part of whatever the reform is. Newly in the role, I am working on that and on what we will bring forward in the reforms.
Q191 Baroness Blower: This is a question for you, Minister. We have the numbers behind this, so we do not need to hear them, but why are ethnic-minority prospective adopters waiting longer than white prospective adopters? Why do children from ethnic minorities wait longer to be placed? Of course, the obvious follow-up is: what will you do to address this?
Kelly Tolhurst: On why ethnic-minority adopters are waiting longer to adopt a child and why black and ethnic-minority children are waiting longer to be adopted, we are still exploring some of the challenges around that. As you will have seen from the data, we have seen a reduction in the time that it takes for black and ethnic-minority children to be adopted since the Act has been in place, by about 30%. We still need to do more work in regard to recruiting and making sure that adopters understand.
My early thoughts are with the work that has been done with the regional adoption agencies and the work that has been done on matching. I am not saying we are where we want to be at all. To go back to the earlier point, I recognise that while we have not undertaken post-legislative scrutiny of the Act up until now, for the department these are indicators, and it is our day job to make sure that they are improved and worked on.
To give you a very straight answer, I do not know all of the reasons why that is the case, but it is work that we are undertaking and concerned about. We are not saying we have ticked all the boxes with the Act. We want to improve on that. We need to get those numbers down. We need to get the numbers down for everything. We need to get the average time for all children down from 18 months to 16 months. We need to get that down across the piece, specifically recognising that there are particular challenges in the data around those groups.
Baroness Blower: Recruiting prospective adopters from whatever ethnicity, but in this case minority-ethnic backgrounds, is key in your view.
Kelly Tolhurst: It absolutely is key. Please excuse me. I will be honest: I do not know all the tactics that our regional adoption agencies are using at this moment in time. This is not a new challenge. We need to make sure that we assess what we are doing and, if it is not working, change it and improve it. That will, I hope, have an impact on the length of time that children from ethnic-minority backgrounds are not being adopted and will make sure that they are able to find loving homes.
One of the things that I have been pleased about with the regional adoption agencies is the absolute focus on adoption, with the support, the information that adopters are being provided with and the focus that we are putting on the matching situation. While we have not hit the mark yet, we are on a good trajectory. It can only get better, I believe, and the regional adoption agencies, in my view, will have a greater impact on that as we move forward.
Baroness Blower: Thank you.
The Chair: The disparities in the system facing both prospective ethnic-minority adopters and children of ethnic minorities have been a real concern to the committee, so if there is anything else you would like to send us on the subject afterwards we would be very pleased to receive it. With one eye on the clock and knowing that Mr Russell has been sitting there extremely patiently, could we move on to Baroness Prashar, please?
Q192 Baroness Prashar: Thank you very much. My question is about adoptions too. The number of adoptions has been decreasing steadily. What are the Government doing to address this and increase the speed and the number of adoptions?
Kelly Tolhurst: We know that last year adoptions went up compared with the year before, but there has mainly been a downward trend. While it does not help you as a committee, I am developing some of my thinking on this as well and one of the interesting points is that, since two court rulings in 2013 that confirmed that adoption orders should be made only when there is no alternative, such as placing a child with a relative, we have seen an increase in special guardianship orders.
I am not saying that is the reason, but it could possibly be one of the elements, going back to the earlier point around kinship. These are questions that I will be asking and looking at particularly as we look at some of the reform work. I hate to keep harping on about that, but I have been so excited to come into the role at this time because it is a critical time and full of opportunities to change things. They are the questions that I will be asking.
With special guardianship there is some support. We are also looking at that. We still need to test it, but we know that we have more adopters now than we have children waiting to be adopted. It is for me to challenge and ask questions as to why we are still at 16 months for children to be adopted and why that has not been reduced.
We know that some of the work we have done with permanency placements—placing children with a permanent foster carer before adoption—has an impact as well, if we can get children with the people they are going to be with for ever, hopefully, at an earlier stage in proceedings. While adoptions are not taking place at a later point, they are in environments that have been matched by the regional adoption agencies. In my life before Parliament, I have seen adoptions break down before and during adoption. I am sure the committee is experienced in this area.
I always think that while numbers are really important it is about what is right for the child, so we have to do everything we can to make sure that children in the system are getting adopted—that is my priority—and make sure that we are pushing in the right way so that the children get the right placements if adoption is right for them or if there are other arrangements that are best for them. That is exactly what we should be pushing for. That is just my view.
Baroness Prashar: Would you say that you have plans to deal with the chilling effect of the court judgment that you made reference to, that adoption should be the last resort? Is that something you will look at very carefully?
Kelly Tolhurst: I will be looking at it. It may be the only resort. Since I have been involved, the establishment of the regional adoption agencies, in my mind, has had a great impact in this area. I say that because in the past I saw the very haphazard way in which that was sometimes dealt with by local authorities. This, to me, feels that we are moving towards success. Adoption will be right for the right child, a special guardian will be right for the right child, and so will a kinship arrangement. We need to keep challenging. We have a new cohort of young people, sadly, every year. This job is never done. We should constantly be asking whether we have the balance right, and it should not always be focused on money.
Baroness Prashar: Thank you very much.
The Chair: Before we move on to employment rights, the removal of the national free register for matching has, I think, removed the rights of children to be seen and considered by adopters nationally. Do you feel that was the right thing to do?
Kelly Tolhurst: Thank you, Chair. You are right; we had the matching database, but, actually, over 90% of the regional adoption agencies were using another system, Link Maker, which is a social enterprise. In effect, the register that we had became redundant because regional adoption agencies had chosen to subscribe to Link Maker as opposed to using our free system. I am comfortable with that because quite often social enterprise is able to deliver a better product than government can. I do not know if that was the case, but the regional adoption agencies definitely thought with their feet in that instance.
The Chair: I know there have been concerns expressed about no social worker support and so on, but thank you for that answer. We must now turn to Sections 7 to 9 of this very wide-ranging Act, which deal with employment rights.
Q193 Baroness Bertin: Thank you for your patience, Minister. Could we kick off with shared parental leave? The aspiration was 25% of people taking it up, and it is more at about 3.5%. Affordability was the main reason stated to us by witnesses. How do we square that circle? There is not a great deal of money in the pot, and employers probably do not want to be forced to pay more either. What is your view on that?
Dean Russell: Thank you for the question. Anyone who knows me well would know that it took quite a lot to not speak for the past 45 minutes, so I will try to cram it all in now. The key bit for me is the take-ups. There are various aspects. One is making sure that parents are aware that it is there, and I know there was a £1.5 million marketing campaign back in 2018 to promote it. Where it is working now is through word of mouth. It is people being aware that they can use it.
There is also a sense of whether people want to use it. It is a system that requires both parents to want to engage with it, and it is important that we have flexibility so that they know it is available. If they choose not to use it that is fine, but it needs to be there to make sure that they can. I do not think I would class it as a failure. It has doubled in usage over the past few years. There is an opportunity to look in more detail at why take-up has not happened. It may well be financial, but I think there is an element of making sure that we do not say, “Not enough people have used it; therefore, we should scrap it”.
The absolute key thing to this is learning from the successes that we have had and being aware that the original projections for take-up were actually around the mark that they have been taken up. You mentioned 25%. I have not seen that figure.
Baroness Bertin: It was a previous Minister.
Dean Russell: Forgive me, perhaps they were being more ambitious. Within the lines of the projections that were originally made, it is almost on target with that. I will look back. I will check those figures and make sure I am not wrong on whether it was 25%. There is a hope over time that it will build up, and a lot of it is awareness rather than the initiative itself not working.
Baroness Bertin: I agree with all that and thanks for your honesty. I agree that legislation is perhaps not the answer. For very small companies it is difficult, but with big companies that are making big profits, are there any ways that you can encourage them that this is the right thing to do and they should pay for it properly, because if you are not being paid properly you will not be able to take it up? That would be my point.
Dean Russell: I understand that, but there is a lot of flexibility in the system. This is not just about one employer, as I understand it, at least not one employer having both parents in the same company. It has to be both employers and both parents. It is about the flexibility. How much time do they want to take? Do they want to do it two weeks on, two weeks off? Do they want to do six months and then use the rest of the time available?
The reality is that if you require businesses to be more rigid and more structured, and you require parents to be more rigid and more structured, that inherently will damage the system. For me, it is about getting the balance right.
I think a lot of it is about awareness. I am sure everyone is watching this committee and not the Chamber at the moment. I am sure we will be on “Newsnight” tonight. It would not be Jeremy Paxman any more, would it? Whoever is doing it—Emily Maitlis or whoever—I hope that they tell people about this brilliant initiative.
Baroness Bertin: I would back that up totally. I think that culture change is key to all this but—
Dean Russell: If I may, just on that point—sorry to interrupt—I think there is an element of that as well. There is a real shift, and it is really positive, about the idea of fathers being the ones who are at home looking after their kids. It has probably always been there, but society-wise it is an important message to get across; not only that they should, and many do, but that they can, and that really has to come through.
Baroness Bertin: I agree with that. I am conscious of time, and I do not want to stop you because you have been waiting for a long time. On the right to request flexible working, some of our witnesses said it is actually a right to refuse and that it was a failed policy. I am not sure whether that is a fair analysis, but I would like to get your view on that.
Dean Russell: I think about 83% of people who have asked for flexible working have had it. Please correct me if I am wrong; I am looking at my officials. That is my understanding. It has a huge take-up. I want to understand better why for the remaining 17% perhaps it has not worked. As I understand it, there are about eight different criteria for what can be looked at and considered.
The big difference now, which we alluded to right at the start, is that there is a quite a societal shift. The pandemic had an impact on what people considered to be flexible working, and we need to make sure that employees are aware of what those options are. I think most are. It is very rare that you speak to someone and they are not aware that they can do flexible working. However, there is a flip-side to that; not every job can be done as flexible working. You cannot ask a construction worker to work from home.
I was at my local fire station just the other day. They have to go to the fire. There is an element of being realistic about what actually can be done at home and enabling the conversation to be had fairly, rightly so, between the employer and the employee and making sure that when they come to an agreement it is the right agreement. My take is that within the framework of those eight points, if the employer is being extremely unreasonable, the employee has the right to take it to a tribunal.
Baroness Bertin: Finally, do you think it should be a day one right?
Dean Russell: I know this has come up quite a bit in discussion. I understand why people would want it to be a day one right. We have to look at the balance of the burden on business and the opportunities for the individual. I am very open-minded on these things, but we have to be mindful of what the impact of that would be.
Baroness Bertin: Understood, thank you.
The Chair: May I ask one very quick follow-up on shared parental leave? I heard what you said about the need for flexibility and balance and all of that, but a number of our witnesses drew our attention to the “Use it or lose it” schemes in some other countries. Would the Government consider a use it or lose it scheme for parental leave, as indeed has been recommended by the Women and Equalities Committee?
Dean Russell: Would you mind expanding use it or lose it? I must admit that I would need to look into that in a bit more detail.
The Chair: It is to do with parental leave and whether it is actually used by the parents in the way that is meant by the scheme, or if they do not use it for whatever reason, they have lost it.
Dean Russell: I see. I would need to look into that, in all honesty. I do not want to waffle on and find that I am not giving you the right answers.
The Chair: Forgive me, I cannot remember. There are some countries we heard evidence from. Can anyone remind me which countries?
Baroness Bertin: I do not know exactly which country, but certainly the European countries have a much better take-up.
The Chair: Sweden.
Baroness Bertin: Sweden, yes. The Scandinavian countries.
The Chair: Several witnesses who came in front of us kept saying, “Have you considered it?”, or, “Do you know if the Government are going to consider it?” It is a way of incentivising it and getting greater awareness.
Dean Russell: Just so that I am getting it right, if you do not use it you have lost it, and therefore it encourages you to use it. Am I understanding you right?
I get that, but we need to give parents the right. If they are six months into being a parent and they change their mind, or even in the last few months—I probably need to check on what the government view is on this—my gut feeling is that they should be allowed to use it at the point when they need to use it. One important statistic when comparing with Europe is that I believe maternity leave entitlement in the UK is three times the EU requirement, so we have good rights for parents in this country. I hear you. I will take it back.
The Chair: Thank you. Sorry, I may not have made that as clear as I should have, but my understanding of the way it works is that the mother can decide to share some of that entitlement. Sarah?
Sarah Jennings: Under the current system, you have a certain amount of maternity leave that you essentially give to a partner, and that is shared parental leave. Instead, under a use it or lose it scheme, there would be two individual entitlements—maternity leave and paternity leave—and, if a father did not use it, they would simply lose it but it would not be traded between each partner.
Dean Russell: I see. Let me go away and look at that. I know we have paternal rights and so on. I will look into that in more detail. Mike, do you want to come in on that?
Mike Warren: Without wanting to draw attention back to the evaluation, which we have not yet published, the evaluation will look at the experience of shared parental leave, what parents assess to be the pros and cons, and the sense of what barriers there might be to take-up or the factors behind the relatively slow trajectory in take-up. We can certainly think about those sorts of questions once we have a clearer understanding of what the experience has been to date of the policy as it is.
The Chair: Thank you very much. As has been said, there is a lot of awareness-raising to do in this area.
I thank all three Ministers very much for coming before the committee. It has been a very important and a very helpful session. A number of you very kindly offered to send us follow-up submissions. Because we are now at the stage when we about to start our first draft, we would be grateful if you could send them as quickly as it is possible for you to do.
Thank you for your time. We are very grateful. It has been really important. This is the culmination for us of about nine months’ work, and obviously we want to make sure that we come up with a report that has important recommendations and things to do and, I hope, things that you and the Government will consider. Thank you very much indeed.
