Members present:

Dr Hendron (Chairperson)
Mr Berry
Rev Robert Coulter
Mrs Courtney
Ms McWilliams
Ms Ramsey
Mrs I Robinson

Witnesses:

Ms M Reynolds )
Mr D McGowan ) Departmental Officials
Mr J Clarke )

The Chairperson: I welcome Mr John Clarke, Mr David McGowan and Ms Marion Reynolds to speak to us again regarding the Children (Leaving Care) Bill. I am sorry to have kept you waiting.

Clause 1 was agreed on 12 June.

The Chairperson: We agreed subsections 1 and 2. Subsection 3 introduces the new articles 34B, C and D. Articles 34B and 34D were agreed on 12 June, and article 34C remains to be agreed. We should appreciate your speaking on that, Mr Clarke.

Mr Clarke: The issue is whether the reference should be to appointing or arranging the appointment of a personal adviser. The word "arrange" is used in the new article 34A, which was inserted by clause 1. The reason is that 34A deals with the situation before a young person leaves care and is purely preparatory. To use "arrange" in new article 34C would mean that the young person could leave care before being provided with a personal adviser; the word "appoint" is more specific. Barnardo’s is concerned about the word "appoint", which appears to imply a great deal of power for the trust to make an appointment.

Paragraph (13) of the new article 34C draws into the provision paragraphs (2) and (3) of article 26 of the Children (Northern Ireland) Order 1995, which make it clear that the decision to make an appointment would be made only in liaison with the child, his parents and various other parties. It would not be "appoint" in the dictatorial sense of the word. I can provide the Committee with copies of the articles.

The Chairperson: Perhaps it might be helpful if we asked the Clerk to read out what Barnardo’s said.

The Committee Clerk: Barnardo’s provided evidence on 28 May, and Sue Ramsey raised a point at the time. It said that the word "appoint" is not about choice; rather it involves the allocation of work regarding a young person. Had the word "arrange" been used, as it wanted, that would have allowed the young person an element of choice in his personal adviser.

Barnardo’s went on to say that choice is important for young people and that its work with them is about working in partnership and allowing choice. Young people are experts on themselves, and they should have a right to their say, especially on big decisions which affect their lives.

Barnardo’s suggested arranging a personal adviser for each relevant child and appointing a named worker. Last week it was asked whether that adviser and named worker were the same person. There was some confusion as to whether it referred to different people. Barnardo’s suggested that it could be two separate people, and that is why its proposed amendment was framed that way.

Mr Clarke: There are two points. My first was about "arrange". The element of choice is introduced, since, in making the appointment, paragraph (13) of the new article applies paragraphs (2) and (3) of article 26 of the Children (Northern Ireland) Order 1995. Those paragraphs make it clear that such an appointment would be made taking into account the wishes and feelings of the young person. That is how the element of choice is introduced. It is not simply an appointment with which the young person is stuck. The wishes and feelings of the young person and the views of various other people must be taken into account.

It is important to use the word "appoint"; if "arrange" had been used, nothing would be done. While young people are in care, that can be arranged, but from the date they leave care an appointment must be made.

Mrs I Robinson: It stresses that a personal adviser must be appointed when the child leaves care.

Mr Clarke: It refers to the contrast between the first two sections. The authorities must "appoint" someone for that stage.

Mrs I Robinson: It is a stronger word than "arrange".

The Chairperson: Do you have any more points on 34C, Mr Clarke?

Mr Clarke: We have touched on the subject of the named worker. One individual should have the lead role in co-ordinating services for the young person. The function of the personal adviser will be prescribed under the new article 34E(2), which would be inserted into the Children (Northern Ireland) Order 1995 by clause 3 of the Children (Leaving Care) Bill. We have not prescribed anything yet, but we envisage that the functions will include advice, support, participation in the needs assessment and the preparation of the pathway plan, co-ordination of the provision of services and taking steps to ensure that the young person avails of such services.

I have had discussions with Barnardo’s, as I was uncertain of its intention. There may be a problem with inserting the phrase "a named worker", since the functions of that named worker would have to be prescribed. That could mean some legislative untidiness. Barnardo’s was concerned that the young person’s adviser might be a foster carer without the necessary clout to obtain the services. We must create some flexibility on who can be a personal adviser. He or she must have the necessary authority, power and status, and that has to be made clear by the regulatory powers. The insertion at every juncture that each child must have a personal adviser and a named worker would not make the legislation any clearer.

The Chairperson: We accept your point, Mr Clarke. I shall go through each paragraph of article 34C. We have agreed most of clause 2.

Paragraph 34C(1) states that

The Chairperson: I refer to paragraphs (2), (3), (4) and (7) and paragraphs (5) and (6) enabling the Department to make regulations on assessment. Paragraphs (8) and (9) impose a duty on the authority to safeguard and promote the welfare of the relevant child. Paragraph (10) enables the Department to make regulations about the meaning of "suitable accommodation" and the suitability of landlords. Paragraph (11) places a duty on the responsible authorities to take reasonable steps to keep in touch with the relevant child. Paragraph (12) applies article 18 to assistance that may be given under article 34C. Paragraph (13) ensures that an authority must have regard to the wishes and feelings of the child and others who are relevant.

Question, That the Committee is content with the clause, put and agreed to.

Clause 4 restates existing articles 35 and 36 of the Children (Northern Ireland) Order 1995 and divides them into four (articles 35, 35A, 35B and 35C) to make them simpler to follow. They have also been amended to take account of the new concept of the responsible authority.

The Committee Clerk: That was another clause for which amendments were suggested. Perhaps members might turn to clause 4 under article 35A "Advice and assistance" on page 7 of the Bill. Paragraph (5) at line 20 states that

Mr Clarke: We touched on the matter last week. Our view is that the legislation should not be used as a basis for making routine payments to young people. The presumption is that any such assistance would be provided where necessary to protect the young person’s welfare and could not be made available by any other agency. The intention is not to use the provision for anything other than exceptional circumstances. To do otherwise would broaden its scope enormously and have an impact on other agencies which would be required to contribute to the young person’s welfare.

The Chairperson: The second amendment is to line 26 to line 30 in paragraphs (1) and (2) of article 35B on page 7, where it has been suggested that the word "may" should be replaced by "shall". Do you have any comment on that, Mr Clarke?

Mr Clarke: We have avoided placing a direct duty to assist, which would mean any care-leaver who had been in care for any period after reaching the age of 16. If the amendment to replace "may" with "shall" was inserted, it would mean that the provision would also apply to a young person who had only been in care for one day. There would be no qualifying period. It would be more open in comparison to the earlier provisions, which were concerned with eligibility standards. To insert those words would imply that there was no standard qualifying period whatsoever.

The Chairperson: Paragraphs (1), (2) and (3) in article 35, which is introduced by clause 4, restate the definition of "a person qualifying for advice and assistance" which is found in the Children (Northern Ireland) Order 1995.

Paragraphs (4), (5) and (6) provide for an authority to have a duty to keep in touch with a young person, defines which authority is to be responsible for providing services and prescribes the meaning of terms used in paragraph (5).

Article 35A has six paragraphs. It restates, with amendments, the powers and duties of authorities in respect of qualifying persons. Paragraphs (1) to (3) place a duty on the relevant authority to consider whether a qualifying person needs its assistance. The authority is required to advise and befriend a young person. Paragraph (4) provides that an authority may also give assistance to a young person. Paragraph (5) provides for that assistance to be in kind or, in exceptional circumstances, in cash. Paragraph (6) applies article 18 of the Children (Northern Ireland) Order 1995 to any assistance given under articles 35A or 35B.

Article 35B has six paragraphs. It restates and amends the powers to provide assistance with employment, education and training currently found in article 36 of the Children (Northern Ireland) Order 1995. Paragraph (1) provides for an authority to give assistance to a person under 21. Paragraphs (2) and (3) provide that an authority may give assistance to a person under the age of 24. Paragraphs (4) and (5) enable an authority to disregard any interruption in a young person’s attendance on a course and require the authority to provide suitable vacation accommodation. Paragraph (6) gives the Department a regulation-making power.

Article 35C has two paragraphs and provides for the necessary communication and liaison between authorities. Paragraphs (1) and (2) extend the existing notification obligations under article 37 of the Children (Northern Ireland) Order 1995 and restate the provisions in the article.

Question, That the Committee is content with the clause, put and agreed to.

We were given a helpful briefing paper on clause 6. Mr Clarke gave an explanation on clause 6 last week. Colleagues should study the briefing paper from the Department or perhaps Mr Clarke would like to speak on it. It deals with the transfer of allowances from the Department for Social Development to the Department of Health, Social Services and Public Safety.

The Clerk: On page 8 of the clause-by-clause briefing note to members there is a short summary of the concerns raised by Barnardo’s, the Children’s Law Centre and First Key about clause 6. Those three organisations have asked for clause 6 to be removed, and several other bodies, such as trusts, have voiced concern about its operation in practice.

Ms McWilliams: Having read the briefing paper and having consulted all the groups, I am still in favour of deleting clause 6. There is much concern about removing the entitlement to benefits. The groups are concerned that, given what we have heard about the limited resources for children in care, there may be no additional funding packages. What they have at present is at least legislated for and available. They argue that clause 6 is a step backwards. Entitlement to benefits for 17-year olds is a matter for the Department for Social Development. If it were ever returned, the change would be made throughout the United Kingdom. I asked the groups whether they were still unhappy about the clause, given that young people are not entitled to as many benefits as they once were. They said that they still preferred to retain what they had.

The Chairperson: I respect Monica McWilliams’s expertise. I read this part of the Bill carefully; I read the document; and I listened to what was said last week. The idea of a trust acting as a family for a young person is very important. The last few lines of the synopsis of arguments against dropping clause 6 state:

The Chairperson: This is such an important matter.

Mr Clarke: The issue would not be entitlement to benefits, but entitlement to the benefit of the money transferred. What is important is that young people do not lose out. The money must benefit the people to whom it is transferred. I understand that concern.

The Chairperson: If a guarantee cannot be given that that money will be ring-fenced, I am totally sympathetic to Ms McWilliams’s view.

Ms McWilliams: The Assembly has just passed legislation to protect the rights of elderly people in residential care, although this may not be Mr Clarke’s field. The legislation moved the responsibility from the Department for Social Development to the Department of Health, Social Services and Public Safety so that the rights of elderly people in care would be protected. The money was transferred in the first year along with the responsibility. I asked the Minister what would happen in years to come, and she said that the Department would have to find it from its own resources. We are dealing with the same issue in this legislation.

Mr Clarke: I am very conscious of the issue. I have many concerns about securing provision in a wider sense, including provision by voluntary organisations. There is a danger that bringing in money from one source simply reduces the money available to other organisations. It is important to secure the territory. I agree that there is a risk with transferred money, and it would be wrong of me to say otherwise.

The Chairperson: I appreciate your forthrightness. However, these children must be protected by law, which is what the Committee is trying to do. I am sympathetic to the points made in this document, but the last four lines drew my attention to the problem. A legal guarantee must be given.

Mr Clarke: There are ring-fenced arrangements in England, although I cannot say how well they work. However, they are part of a ring-fenced budget.

Ms McWilliams: Was that budget not substantially higher? These groups say that when the legislation was passed in England substantial funding was set aside for the transition, and that may be why there was no public outcry.

Mr Clarke: Funding was set aside.

Mr McGowan: The money that was ring-fenced in England was not just additional money: it included money that was already in the local authority system. The ring-fenced budget consists of existing money and additional money that was secured.

Mr Clarke: Mr McGowan has explained the matter better than I. Money must be ring-fenced and secured, but if care is not taken it could quickly displace other money. Ring-fencing tends to broaden out. In fairness, that is part of the general attitude to ring-fencing, which people already know about.

Ms McWilliams: If there were additional funds to be ring-fenced that would be slightly different from ring- fencing money because the Department may find itself having to take the money from elsewhere to do that.

Mr Clarke: The Department is wary of ring-fencing one pot and leaving other funds without ring-fencing. We may say that we have ring-fenced one set of funds, but that does not mean that the money has not disappeared from somewhere else.

The Chairperson: The money from the Department for Social Development and from social security is secure. Therefore that money is ring-fenced — if that is the appropriate word. Will these young people be guaranteed this money when it is transferred? I understand your point about ring-fencing and money being diverted from other areas. However, if the Committee were to accept clause 6, how would it be sure that, by law, those young people would get the appropriate funds?

Mr Clarke: Ideally, the Department would like the legislation to stipulate that young people leaving care would not be any worse off than their peers by the transfer of resources. However, legislatively, that is incredibly difficult. The money would have to be secured in another way — by ring-fencing. It is not a purely legislative matter; ring-fencing cannot be legislated.

Ms McWilliams: You have affirmed the Committee’s view. Unless any Committee member disagrees, I propose that clause 6 be deleted. If other Committee members wish to speak in favour of retaining it, they should do so rather than continue the argument in favour of deleting it.

The Chairperson: These points raise concerns; had it not been for them I would have been in favour of retaining clause 6. The thrust of the Bill is that a trust acts as a parent and helps the young person along the path to independence. However, if financial support cannot be guaranteed, it is flawed.

Mr Clarke: There are arguments on both sides. I understand that the Committee wants an assurance on money that is transferred under clause 6. Rather than drop clause 6, would the Committee be satisfied if that assurance were given?

Ms Ramsey: The Committee is concerned that young people will be stigmatised because they have to go through the trusts and do things differently. Despite the Department’s assurances, I am concerned that even though some boards and trusts have more money than others, they could be given more. This is major concern for the Committee, and it seeks assurances from the Department.

Ms McWilliams: I am grateful for Mr Clarke’s response. However, having seen the budget, I am not sure that the Department can give that assurance.

Mr Clarke: I cannot give you that assurance, unfortunately.

Ms McWilliams: Even if the Department said that it would try to protect the money, the Committee remains concerned about the long-term implementation. Even proposals that the first year’s money would be protected cannot be guaranteed. In the absence of a guarantee we cannot be certain that funding would be found. We would be doing harm, and my principle on legislation has always been: do no harm.

The Chairperson: Ms McWilliams has proposed that we do not accept clause 6, and Mrs Robinson has seconded it. If the Committee opposed clause 6, the Minister, or any future Minister who so wished, could revisit it with a completely different attitude. It is not set in stone. The Committee therefore opposes this clause.

Question proposed: That the Committee recommend to the Assembly that the clause be amended as follows: In page 9, delete all from line 1 to line 21 — [The Chairperson.]

The Chairperson: Clause 7 has six subsections that make consequential amendments to the Children (Northern Ireland) Order 1995.

The Committee Clerk: Clause 7 identifies minor and consequential amendments and repeals; no comments have been made against it.

Question, That the Committee is content with the clause, put and agreed to.

The Chairperson: That finishes this part of our scrutiny.

Mr Clarke: There would be a consequential amendment. In clause 9 dealing with the short title and commencement it says: