Official Report: Minutes of Evidence

The Chairperson (Mr Nesbitt): We are joined by Natalie Whelehan, a policy officer at the Children’s Law Centre, and Rachel Hogan, the special educational needs representative. We will try to do this evidence session in no more than 20 minutes. We have a written submission, Rachel and Natalie, but I could offer you up to two minutes for opening remarks, if you wish.

Ms Natalie Whelehan (Children's Law Centre): Thank you very much for giving us the opportunity to present to you and to present separately, so that we can offer a policy and practice perspective on the Bill.

We are very much in favour of the Children's Services Co-operation Bill. We have long been an advocate of the need for a statutory duty on government to cooperate. It is a unique and exciting opportunity to improve the well-being of children and young people and to advance their rights. Rachel will present a couple of examples that we feel will explain and illustrate the need for a strong children's rights-based statutory duty to cooperate to be introduced. It is through learning from our casework that I have the following policy perspective.

The Government have ratified the United Nations Convention on the Rights of the Child. The Northern Ireland Executive are obliged to deliver all the rights in the convention for children and young people. Legislative and policy development in Northern Ireland should be taken forward in compliance with the rights enshrined in the convention. In particular, we want an explicit reference to a statutory duty on Departments and agencies to work together to meet the needs of the whole child, with the best interests of the child as the primary consideration.

In line with the obligation to cooperate, we agree with the previous witnesses in that we want the reporting requirement to be annual, in compliance with the recommendations of the UN Committee on the Rights of the Child, which said that overview reports on the progress of children's rights should be produced annually. Annual reporting would improve effectiveness, transparency and accountability. It would also result in better monitoring and data collection, all of which would improve outcomes for children.

We want an explicit reference to the need for Departments and agencies to cooperate at the earliest possible opportunity in children's lives in order to achieve better outcomes for children. We want a statutory requirement on government to pool resources rather than an enabling power. There are current examples of Departments pooling resources, which suggests that that is possible. We do not believe that the vital pooling of resources for the provision of children's services will occur unless there is a clear statutory obligation to do so.

The Chairperson (Mr Nesbitt): That is two minutes.

Ms Whelehan: Finally, we want a clause to be inserted to ensure consultation with children and young people, their parents and the relevant public bodies, which should include a duty to take into account views expressed through consultation.

Rachel was going to give an overview of some of our cases.

Ms Rachel Hogan (Children's Law Centre): It might be easier to address them through questions. I can give cases as examples.

The Chairperson (Mr Nesbitt): Have you prepared some remarks?

Ms Hogan: I have some cases that I can share with you and that I think you will find useful.

The Chairperson (Mr Nesbitt): It is entirely up to you. You have 20 minutes. If you want to use that to make a formal presentation —

Ms Hogan: I will not speak for 20 minutes. I will give people an opportunity to ask some questions.

My role in the centre is as part of the legal team. I work with children with special needs and disabilities. There are some 71,500 children with special needs in Northern Ireland; that is about one in five of our school population. The issues that I am concerned with generally relate to education and health. In some of the cases that I have been involved in, the lack of a duty to cooperate has impacted quite severely on the children who I deal with.

The primary message that I would like to leave with the Committee today is that this legislation should have inserted into it the principle of the best interests of the child. It should be child rights compliant to enable the Executive to comply with their own duties under the UNCRC, which the Government have ratified. That could be done in the duty to say that the purpose of the legislation is to ensure the meeting of the best interests of children. This, after all, is why we want to ask Departments to exercise their functions in such a way that they meet the best interests of children and young people. I do not think that anybody around this table who deals with and tries to help constituents in these types of cases daily would disagree that the best interests of the child ought to be a primary consideration when funding decisions are being made from the top of the tree, right down to when day-to-day operational decisions are being made with the child.

I have taken the views of some of the parents who I have dealt with to try to express to you the dehumanising effect of the current system, which does not comply with the rights of children or the rights of parents to act as advocates for their children. I think that it is best for me to tell you some of the things that parents have passed on to me on this topic. One is from the mother of a child called Carla, who is now 17 and who I have been dealing with since she was 12. One thing that I want to ask the Committee members to do is to take three more minutes of their time at a later point to go onto our website and look at a video that Carla has made. By doing that, you will learn far more in two minutes and 24 seconds than I could tell you in 20 minutes or 20 hours. A link to that has been circulated to the Committee Clerk, so it should be easy to access. Her mother has talked about the situation that they faced through not having cooperation between the Departments of Health and Education. She says:

At the age of 12, this little girl with cerebral palsy was being asked to sit in her wheelchair in a mainstream school for eight hours a day without any physical activity, which, as one might imagine, is very damaging to a child with cerebral palsy and can have lifelong health effects. Her grades started to drop very dramatically, and she was not able to keep up with her peers or meet her true potential. We then had to engage in a long-ranging legal battle, which ought to have been completely unnecessary, in order to get this child physical activity in school every day. What that consisted of, for her, was a couple of sessions of physiotherapy, swimming lessons and floor exercises, so it was a very simple solution after two years and eight months of wrangling.

The difficulty arose because the funding streams between Education and Health are discrete. Education did not want to acknowledge that physiotherapy was an educational provision, and Health did not want to provide physiotherapy in a mainstream school. It would have been much easier for them if she had gone to a special school for example, and that also impacts on the inclusion of that child in mainstream schooling. I would really like the Committee to take the time to listen to Carla in her own words. She is 17 now, and she has become a fantastic advocate for children's rights through her own experience. I think that she can speak louder than I, as a lawyer, can on what it is like to be a child in that situation.

Another case that I want to share with you is the case of a child in the early years of primary school who has Down's syndrome and required another health therapy in school. On that occasion, we had to take a tribunal to access the health therapy in a special school. We got a tribunal order to say that he should have therapy x times per week for a certain amount of time. It is the Education Authority's duty to arrange that with Heath, but because there was no duty to cooperate, there was no cooperation. That child did not have occupational therapy (OT) for a year, even though he had been assessed as needing it. They had the tribunal process, and Health refused to comply with the tribunal order; it said that it did not agree and that it was not going to provide it. That would have left Education having to employ a private therapist had we not been able to resolve it. How did we resolve it? We had to threaten judicial review against Education. That is not an ideal situation. We should not have had to have those conversations at all.

To my mind, the duty to cooperate is about a complete culture change in the thinking of all our Departments, agencies and anyone who is working with children, including schools. Partnership working is the key to success with those children. Meeting the best interests of children requires the duty to be placed at the top of the triangle and then to filter down through the structures that flow from that to the child who is sitting in the classroom, falling behind their peers and suffering discrimination.

I will finish with the view of another parent. I said to you at the start that there is a dehumanising experience for those parents. Parents ring us up daily, sobbing. They have a child who has a disability and special educational needs. They are trying to come to terms with that, and they then realise that they have a full-time job of administration in trying to find that help, chasing Education, Health and the medical profession — whoever it might be. The parent says:

Another issue is that the legislation, unlike the English version of the duty to cooperate, does not have a provision to take into account parents. Parents are a very important part of the process of cooperation because they know their child better than anyone else. To put it succinctly, when people work together in a collaborative process and people from different disciplines share their expertise, you are much more likely to get a sensible outcome and to avoid the duplication of labour and the wastage of time in answering emails from the Children's Law Centre and defending judicial reviews. We do not take legal action lightly; we take legal action when it is required to meet the best interests of children.

I would be happy to take any questions that you might have.

The Chairperson (Mr Nesbitt): Thank you very much indeed. With regard to the Bill's reference to the six high-level outcomes contained in the current 10-year strategy, can I be clear that you are suggesting a change in phraseology to:

and that the intent of that is simply to say that if there is a new strategy that has different outcomes, it will be covered?

Ms Hogan: Yes.

The Chairperson (Mr Nesbitt): A more substantive point is your reference, Natalie, to the obligations on the UN Convention on the Rights of the Child. Are you arguing that that would be the better measure as opposed to the six high-level outcomes?

Ms Whelehan: We will enter the consultation process on the new children's strategy with the view that it should be based on the UNCRC. I see them as being one and the same. The UNCRC is, supposedly, the underpinning of the children's strategy as it currently operates anyway, so they are very closely interlinked already. We would like to see the statutory duty in the Children's Services Co-operation Bill make explicit reference to the best interests of the child, which comes directly from article 3 of the United Nations Convention on the Rights of the Child. It can also be found across various pieces of our own domestic legislation, such as the Children Order. It will be proposed in the new Justice Bill in terms of the aims of the justice system. For us, it is really about government moving closer to realising children's rights through the children's strategy and the legislation, and delivering better outcomes for children.

The Chairperson (Mr Nesbitt): As I understand it, a lot of work went into drawing up that strategy, and, as you say, the UN Convention on the Rights of the Child was the underpinning document. Are you critical, then, of these six high level outcomes?

Ms Whelehan: No, I am just nervous about going into a consultation process with the decision made beforehand. It might well be that, at the end of the consultation process on the children's strategy, everyone is perfectly happy with the six high-level outcomes, but it might be that changes are required — it is 10 years old — or it might be that changes will be required in 10 years' time. We are really keen to future-proof this legislation, and it would be more sensible to take the outcomes out and refer generally to the high-level outcomes of the children's strategy rather than name them in the Bill.

The Chairperson (Mr Nesbitt): You have also highlighted that there are some issues that rest with the Northern Ireland Office, not least immigration, refugee and asylum issues. These are not devolved by definition. How can we legislate to cover something that is not in our competence?

Ms Whelehan: Well, we cannot. There are constitutional issues, which I flagged up in a written submission. It really was just to highlight that as an issue for the Committee and for OFMDFM. There will be services that will not come within the scope of the Bill because they are not devolved.

The Chairperson (Mr Nesbitt): You, along with others, recommend that we have statutory guidelines on foot of this Bill. What is your rationale for that?

Ms Hogan: We have experience of dealing with statutory guidelines in the area of special educational needs and disability, as other witnesses have mentioned. We find that, as long as it is statutory guidance, so that there is a duty to have regard to it at the very least, it does hold sway with decision-makers. It helps with that culture change, but it is also easier for people to comply with their obligations when they have explanations and examples of what good practice looks like. It is guidance and is not written in stone, but it does hold sway. We have found, having taken matters before the courts, that they will always have regard to statutory guidance, and that, in itself, is helpful for people, as they know that there is oversight by the courts and that statutory guidance therefore has a level of importance.

The Chairperson (Mr Nesbitt): You also say that you would like to see a definition of "functions" in the Bill. Why?

Ms Whelehan: That is just an example. We would like to see a definition. The purpose of the guidance is to provide everybody with a clear understanding of what is expected of them, what their obligations are under the Bill and definitions of what is meant by some of the terms. We flag up "functions" and refer the Committee in our submission to the definition of "functions" under section 75 of the Northern Ireland Act 1998, in the interests of being helpful. Obviously, drafters are going to have to look at what is meant by "functions".

The Chairperson (Mr Nesbitt): OK. Time is nearly up.

Mr Spratt: Thank you for your presentation. Daniel Greenberg, an expert and former member of the Office of the Parliamentary Counsel, gave evidence to the Committee, which you have probably read. He had some key concerns with this legislation as presently drafted. He suggested that it was difficult to ascertain what the impact would be on the lives of children and young people. Also — I think it is one of the areas that you have just covered — he suggests that the inclusion of policy outcomes in the legislation is inappropriate and that they would be better placed in a strategy document. Using them in legislation could lead to misinterpretation, challenge and judicial review, in the view of Mr Greenberg, who is an expert in the area. Do you agree?

Ms Hogan: Looking at the way that the clause is drafted, certainly you can see that it could be adapted or other devices employed to make it more useable. It is difficult to measure those specified outcomes, and I agree to an extent with what he has said. It could be said to be vague. Would that then spark judicial reviews? Not necessarily, because I think that the annual reporting process, if there is an annual reporting process, would be very important in this, because it can set out in indicators, preferably in child rights' indicators, how outcomes are being met and measure progress. The outcomes, therefore, can be further defined through those measurements. I can understand why there would be some concerns about the way that that is drafted, and we agree with that to an extent. I think that further work could be done on it. I understand that there is now access to the Office of the Legislative Counsel and that it can employ expertise to that. It is not my area of expertise either — hands up. I am a children's rights lawyer, not legislative counsel.

Mr Spratt: I am not asking you to give a legal opinion, despite what I said about fat cat lawyers. [Laughter.]

Ms Hogan: I am not one of them anymore.

The Chairperson (Mr Nesbitt): Other types of lawyers are available.

Ms Hogan: There is a range of services.

Mr Spratt: Finally, in terms of the reporting process, do you think that doing it annually is the best method? We are worried about another level of bureaucracy or another level taking money away from a full pot — we will say that it is a full pot now — to employ people to do a yearly process in the various Departments. Is that an appropriate use of public money?

Ms Whelehan: I understand that concern completely, and I have similar concerns, but my experience has been that what gets measured —

Mr Spratt: How do we get around it, Natalie?

Ms Whelehan: I will tell you. I think that what gets measured gets done. If we build the annual reporting process into it from the very outset, it should not be onerous and bureaucratic, because, actually, how they are fulfil children's rights and the best interests of children should be a consideration of all Departments and agencies as they do their work on a daily basis. That should be an ongoing consideration as it is. It does not have to be a hugely onerous report. It should certainly not take away from doing the work that has to be done. It is about being clever about how we prepare for that annual reporting. That should be built in at the beginning.

The other issue that you raised was removing money from an ever-dwindling pot. I actually believe that that is the purpose of this. Our experience has been that money is being wasted on having to threaten judicial reviews, as Rachel explained, and take tribunals. That is absolutely unnecessary. If we could get Departments and agencies to cooperate better and provide services to really provide better outcomes for children, there would be huge savings to be made. That money could be far better spent; I totally agree with you. That is where the inefficiency lies. It is not about creating another tool to beat government with; it is about doing things smarter and better and, ultimately, creating better outcomes for children.

The Chairperson (Mr Nesbitt): Our time is up, but Alex indicated that he wanted to speak.

Mr Maskey: Very briefly, Chair. Again, thank you both for the important evidence you have given us this afternoon. I am just taking it from reading your submission and hearing the points that you made that you want the legislation tightened up a bit. You referred to the designated, including statutory, bodies, and, Rachel, I think you referred to parents being included at those things as well. I presume that means that you would agree with introducing the need to deal with NGOs as well, who also have some of those responsibilities. You also referred to statutory obligations. Am I right in saying that, generally speaking, you are supportive of the Bill but want it tightened up in certain aspects? You have identified some of those today.

Ms Whelehan: Yes. We see it as a great opportunity. We want to tighten things up and place a notice on government. Our experience is that it is not happening, and it needs to happen — I think Rachel's cases are great examples of what really needs to happen — in order to stop these things from happening again.

The Chairperson (Mr Nesbitt): OK. Natalie and Rachel, thank you both very much indeed.