Report on the Children’s Services Co-operation Bill (NIA Bill 44/11-16)
Date: 01 July 2015
Reference: Fourteenth Report - NIA 258/11-16
Mandate Number: Mandate 2011/16
This Report sets out the Committee for the Office of the First Minister and deputy First Minister’s consideration of the Children’s Services Co-operation Bill, a Private Members’ Bill sponsored by Mr Steven Agnew MLA.
The Bill has 6 clauses and its principle purpose is to introduce a statutory duty to co-operate, which would require Northern Ireland departments to work together and bodies currently represented on the Children and Young People’s Strategic Partnership to work together towards the achievement of six specified high level outcomes relating to the well-being of children and young people. The Bill also seeks to establish reporting mechanisms and provides an enabling power to allow departments to share resources and pool funds.
To inform its consideration of the Bill, the Committee issued a public call for evidence and heard directly from a range of key stakeholders. The Committee took evidence from and liaised with the Bill sponsor as necessary throughout the course of the Committee Stage. Officials from the Office of the First Minister and deputy First Minister also attended Committee to brief Members on amendments being considered by the Department.
The amendments under consideration within the Department were significant to the extent that a revised draft Bill was presented so the Committee, and indeed the Bill sponsor, could clearly see how the Bill would look should the amendments be accepted. The Department considers that the amendments under consideration can address concerns raised in relation to the Bill as introduced to the Assembly, while still delivering against the Bill sponsor’s key objectives. The Committee took account of OFMDFM’s revised draft Bill in its clause by clause consideration of the Bill.
Although it was not content with the substantive clauses of the Bill as introduced, the Committee wishes to point out that it has always been generally supportive of the principles behind the Bill. The Committee agreed that it was broadly content with the direction of travel proposed by OFMDFM in the revised draft Bill, subject to sight of the final amendments. Members noted that the Bill sponsor was of a similar view and continues to work with OFMDFM in relation to potential amendments.
The Committee regrets that the Department’s amendments were not available in their final form for full and proper scrutiny within the time available to the Committee, and notes that the agreement of other departments and the Executive will be required. The Committee would hope that the final amendments can be agreed and brought forward quickly to allow the Bill sponsor to progress the Bill.
Background to the Bill
1. The Children’s Services Co-operation Bill was introduced to the Assembly by Mr Steven Agnew MLA, the Bill sponsor, on 8 December 2014.1 The Bill comprises 6 clauses and its key objectives are to:
place a duty on all Departments to co-operate in furthering the achievement of the six specified high-level outcomes;
amend the Children (Northern Ireland) Order 1995 to require relevant agencies and Departments to co-operate in the planning, commissioning and delivery of children’s services; and
provide an enabling power to allow Departments to pool budgets in respect of cross-cutting children’s issues.
The Committee’s Approach
2. In previous Assembly sessions Mr Agnew had attended Committee to provide briefings on the development of his Private Members’ Bill (PMB). Following the Bill’s introduction to the Assembly, the Committee invited Mr Agnew to give evidence at its meeting on 14 January 2015 to provide an update and ensure Members were fully informed in advance of the Second Stage debate. The Committee also heard from officials from the Office of the First Minister and deputy First Minister (OFMDFM) on that date (see Appendix 2). In accordance with Standing Order 33(1), the Bill was referred to the OFMDFM Committee following the Second Stage debate on 26 January.
3. In their evidence to the Committee on 14 January OFMDFM officials indicated that the Department was, in principle, supportive of the Bill; however, they believed that significant amendments would be required to ensure it met its own objectives. Members of the Committee indicated at that stage that they expected an extension to the Committee Stage would be required to enable the Committee to undertake detailed scrutiny of the Bill.
4. The view of the OFMDFM officials was subsequently echoed by junior Minister Bell during the Second Stage debate. During that debate, the Bill sponsor also acknowledged that “there is much more work still to do on the Bill, with consultation and potential amendments.4” The Committee therefore agreed at its meeting on 11 February to extend the Committee Stage to 3 July 2015. The motion to extend the Committee Stage was approved by the Assembly on 2 March.
5. A public call for evidence was issued following the Bill’s referral to the Committee. The Committee also wrote to a wide range of key stakeholders inviting views on the Bill. In response, 27 substantive submissions were received and a number of respondents indicated that they would also wish to be considered to give oral evidence on the Bill. To enable the Committee to hear from as wide a range of stakeholders as possible Members agreed to invite themed panels of stakeholders to give oral evidence. These panels included representatives from: children’s groups and the voluntary sector; disability groups and occupational health practitioners; and local councils. In addition, the Committee heard from the Health & Social Care Board and Children and Young People’s Strategic Partnership, the Children’s Law Centre, and an individual with a background in children’s services planning. The Committee received a briefing from OFMDFM officials on 27 April on the Department’s initial views on potential amendments to the Bill.
6. The Committee also held two further evidence sessions with the Bill sponsor. These were to allow Mr Agnew to respond to a number of technical issues that had been raised in respect of the Bill at an early stage of the Committee’s scrutiny of the Bill and, at the end of the evidence gathering phase, to provide the Member with an opportunity to respond to all the issues that had been raised. The Official Reports of the evidence sessions are provided at Appendix 2 and the written submissions received are included at Appendix 3. Research papers commissioned by the Committee are provided at Appendix 7.
7. The Committee commenced its deliberations on the evidence on 13 May. A final evidence session was held with OFMDFM officials on 17 June when potential amendments were discussed further. Formal decisions on the clauses of the Bill were taken on 24 June. The Committee agreed its report and ordered that it should be printed on 1 July.
Summary of Consideration
8. The Bill as introduced has six clauses. Details of the evidence received and the key issues raised in respect of the provisions of the Bill are set out below.
Statutory Duty to Co-operate
9. The majority of those who responded to the Committee’s call for evidence were supportive of placing a general duty on departments to work towards the achievement of the outcomes specified at clause 1 of the Bill. It was acknowledged by a number of organisations that some cross-departmental work does currently happen; however, it was felt that the level of co-operation varies across departments and is often on an informal basis. It was considered that this is unlikely to change without the introduction of a statutory duty. Ann Godfrey told the Committee that
“without the statutory duty to collaborate, however much goodwill there is – I am really aware that there is a lot at different levels in agencies – we are limited by the fact that each agency and Department does not have a duty to collaborate to deliver the outcomes. That then puts it further down the pecking order of importance and below everything that is required in each Department or agency.” 3
The Health and Social Care Board (HSCB) stressed in oral evidence that much positive work is being undertaken currently, but was of the view that “more could be done and this legislation provides us with that opportunity.” 4
10. Members also heard examples of the difficulties that arise when an issue crosses more than one departmental boundary from a number of organisations, including the College of Occupational Therapists (COT), representatives of parents caring for children with Acquired Brain Injury (ABI) and the Royal National Institute of Blind People (RNIB) 5. The National Society for the Prevention of Cruelty to Children (NSPCC) advised that it was their experience that “where a policy issue crosses several government departments and their remits, it becomes increasingly difficult to progress in terms of determining leadership and priority. 6” The Northern Ireland Local Government Association (NILGA) advised that there was work to be done in “overcoming silo approaches, both in local government and in central government, to work towards a single outcome agreement approach. 7”
11. The Northern Ireland Commissioner for Children and Young People (NICCY) referred to the ‘Barriers to Effective Government Delivery for Children in Northern Ireland’ report, published by that office in 2011 8 which stated that
“The ‘silo’ mentality that exists among…individual government departments is thought to sometimes impinge upon the outworking of strategies, policies and action plans on cross- cutting issues impacting across children’s lives.”
That report also included a recommendation for a “statutory duty to co-operate at both central government and inter-agency level.”
12. In its submission to the Committee, the Department of Education (DE) advised it was uncertain that the Bill will effect greater co-operation and collaboration beyond what already takes place. The Health Minister also questioned if it is actually necessary to introduce a statutory duty or if it will add a further layer of bureaucracy 9. The question of the usefulness of guidelines as opposed to the imposition of a statutory duty was raised with a number of witnesses. In response, Members heard that there are instances where guidelines can work. The COT provided an example relating to the statementing process within the education system, which health professionals feed into. Others, however, did not believe that guidelines are always effective. The RNIB consider that guidelines do not always result in multidisciplinary working at all levels, while the parent of a child with ABI advised that
“If …guidelines worked or had been working, the parents of children with acquired brain injury would be saying that they felt that their children’s needs were being met. We are here today saying that they are not being met. There is something terribly wrong.” 10
13. In oral evidence NILGA noted that, where involvement is discretionary, it is often up to individuals to champion and drive forward issues. Members were advised that, in the absence of legislation, it would be helpful to look at the issue of “drivers.”
14. Although the introduction of a statutory duty to co-operate was widely welcomed, suggestions were also put forward for possible amendments to this clause. The current Children’s Strategy runs until 2016 and the Children’s Law Centre (CLC) was concerned that the specification of the high level outcomes in legislation should not predetermine or fetter the development of the new strategy. It therefore suggested that, rather than specify the high-level outcomes, an amendment should be made to link to the high level outcomes in the Children’s Strategy “currently operative.” 11 In evidence to the Committee NICCY advised “I would like to see the children and young people’s strategy named so that people are clear that we are trying to achieve those outcomes.” 12
15. In responding to this issue, the Bill sponsor advised that he would be concerned if the Bill was to link solely to the Children’s Strategy. Mr Agnew felt that an amendment to pin the legislation to the strategy as suggested would mean that instances where departments had failed to co-operate in the best interests of children and young people in respect of other strategies (e.g. early years) would not be covered by this legislation. 13
16. CLC also recommended that the duty to co-operate should be extended to include statutory agencies responsible for functions relating to children and young people; that reference is made to obligations under the United Nations Convention on the Rights of the Child (UNCRC); and that the statutory duty to co-operate should be at the earliest possible opportunity.
17. The principle of a co-operation report was welcomed by many of those who responded to the Committee, although a number of those considered that reporting should be at annual intervals rather than every three years. Playboard NI suggested that the impact of co-operation could be reviewed annually with a more comprehensive report against the specified outcomes being completed every three years. Children in Northern Ireland (CiNI) suggested that the report should be laid before and debated by the Assembly on an annual basis. 14 CLC believes that annual reporting would improve transparency and accountability and lead to better monitoring and data collection, which will lead to improved outcomes for children. 15
18. DE noted that the requirement to report to OFMDFM may place a greater administrative burden on departments 16. A similar concern was voiced by a number of Members during various evidence sessions. In discussions on the Department’s early thoughts on proposed amendments 17 officials advised that they too had concerns about added bureaucracy. They went on to advise that they would want to include the report required by this Bill within “the reporting requirements of all the other strategies so, where we can, we are doing one report.” In terms of the frequency of reporting, the officials advised that there may be a compromise between annual reporting and reporting every three years.18
19. A further issue raised by some Members was that, while the report might set out how departments have co-operated, it would not necessarily show how that co-operation had led to better outcomes for children. OFMDFM similarly noted in its paper of 23 April that the focus of the report appeared to be on co-operation rather than the achievement of policy objectives and furthering outcomes for children and young people. It proposed to amend clause 2 to make delivery the focus of the report, while also assessing the operation of the duty to co-operate.
20. Many of the stakeholders welcomed the provisions regarding the pooling of budgets and sharing resources, and believe that it will make it easier for departments to share financial and staff resources to deliver the specified outcomes. Delivering Social Change was cited by some stakeholders as an example of good practice in pooling budgets. In their evidence to the Committee, OFMDFM officials acknowledged that pooling budgets can be effective where a common goal or vision are shared by two or more departments, but that “processes already exist to move money around to deliver on that.” 19
21. The HSCB advised in oral evidence that organisations in the community and voluntary sector often need to apply to a number of different sources for funding to deliver one service. Feedback received by the HSCB from that sector suggested that, by pooling resources, organisations may only be required to make “one application to deliver a particular priority as opposed to several applications to different statutory organisations.” 20
22. A number of stakeholders also believed that the targeting of resources in a more cost- effective way could also deliver savings, which could be of particular importance in view of current financial climate. In oral evidence to the Committee the Northern Ireland Council for Voluntary Action (NICVA) stated that
“it is very clear to us that in a situation of tough and constrained public finance, a Bill such as this is really desirable for two very practical reasons; it encourages better use of scarce resources and it will provide that overview that we think has been missing so far in the services for children and young people that are being cut.” 21
Ann Godfrey pointed out that “it is about collaborating better with the existing resources; it is not about new resources.” 22
23. It was felt by some that this clause could go further. CiNI and Playboard NI suggested that the power should be extended to include agencies and an approach to the joint commissioning of services should be adopted. 23 CLC believe that this should not simply be an enabling power but instead a statutory obligation on NI and UK Government Departments and agencies. The Commissioner for Children and Young People also advised in her oral evidence that there had been internal discussions within that organisation about whether Departments should be compelled to pool budgets. The Commissioner advised
“My experience of Departments is that, if you do not make them do it, they will not do it. It should be kept under review at the moment. I would probably prefer to see them being compelled, but we are in a process and I would like to see whether they would come to that willingly.” 24
24. The need for clear governance and accountability arrangements was raised by a number of stakeholders including DE and NILGA. In its paper to the Committee of 23 April OFMDFM stated that “clear guidance would be needed on their [pooled budgets] operation (accountability, authority for payments, cost control, risk management etc).”25 The Bill sponsor agreed that new accountability structures would be required but was of the view that, once these are in place, more resources would go to service delivery. In response to questions over potential costs of putting such structures in place, Mr Agnew acknowledged that there may be initial costs but that
“Once that is set up, there are savings in the medium term because, rather than five different accounting officers, you have one, and, rather than several application processes for funds, you have one.” 26
This view was not necessarily shared by all Committee Members, as each Department will have to account for funds that it contributes to a pooled budget.
25. In the same evidence session, Mr Agnew’s colleague, Mr Brown, also advised that a further advantage of a pooled budget may be when services “fall between the cracks.” He stated that
“a pooled budget could operate effectively to bring something into place where everybody has some level of interest but nobody is taking the overall responsibility for driving it forward.”
Mr Maskey pointed out that this may not be the case - while budgets may be pooled, Departments would “not necessarily cede authority over policy.”
Children’s Services Planning
26. The Committee received a briefing from the Bill sponsor on the Bill’s provisions and from OFMDFM on its implications in advance of the Second Stage debate and before it was referred to for Committee Stage scrutiny. 27 Mr Agnew advised that clause 4 of the Bill aims to strengthen the work that is already undertaken by the Children and Young People’s Strategic Partnership (CYPSP); however, it was not possible to list all the bodies that make up the Partnership as some do not exist in legislation.
27. At that early stage concerns were raised in relation to clause 4, in particular around the power that appeared to be conferred on the HSCB. Members questioned if the HSCB, as an arm’s-length body, would have power over and above Executive Departments. OFMDFM officials echoed this, advising of their concern regarding the “democratic accountability of the Executive and the Ministers.”
28. While DE also raised this issue in its written submission a number of other stakeholders did not agree that it should be a matter for concern. NICCY, for example, advised that governance and accountability structures would be in place and that the HSCB would be required to work closely with the Health Minister and his officials in carrying out its functions.28 In its written submission CiNI noted that the HSCB
“is directly accountable to the Health Minister for translating his vision for health and social care into a range of services…The very idea that the Health and Social Care Board could ‘usurp ministerial authomomy [sic] to set policy direction’ is totally unfounded.” 29
Nevertheless CiNI went on to suggest in oral evidence that, to allay some concerns, there could be an option to amend the Bill to place the duty on the Executive.
29. In its oral evidence the HSCB advised that, under the Children (Northern Ireland) Order 1995 (the Children’s Order) and the 1998 children’s services planning order, the Board is required to produce a plan and to consult widely in drafting or updating the plan. In response to the concerns about whether too much power would be conferred on the HSCB they advised
“we do not necessarily see it like that, although I understand how it might be viewed like that. How the partnership has worked to date, and how we envisage it working in the future, is that it is very much about collaboration…the proposed legislation is about giving that greater focus, direction and impetus.” 30
30. There were some suggestions put forward with regard to the list of bodies at 4(7). Include Youth suggested that the Department for Employment and Learning (DEL)should be included. A number of stakeholders also advocated reference to children and young people in the development, review or modification of plans, including CLC, NICCY and Ann Godfrey.
31. Both the Department of the Environment (DOE) and NILGA cautioned about the potential impact of this clause on a council’s new duties in respect of community planning. NILGA asked that consideration was given as to
“how this regional integrated statute-based approach to co-operation in children services will translate at a local level and in particular integrate with new governance structures that will emerge from local government reform.” 31
32. A further issue raised was whether the Bill will actually deliver on the policy intent. It was noted that the Bill sponsors intention is very much to improve outcomes for all children and young people; however, the Children’s Order, which the Bill seeks to amend, focuses on children in need. In correspondence to the Committee the Health Minister noted that legal advice indicated that clause 4 could not amend the Children’s Order to achieve the policy purposes of the Bill in respect of children’s services planning. 32
33. In its written submission the NSPCC noted that there are no provisions regarding penalties or sanctions in respect of non-co-operation or limited compliance. It suggested that further consideration was given to this issue “to avoid a simple tick box exercise.” 33 This matter was also raised by a number of other stakeholders including NILGA which, in its written submission, requested clarification on the sanctions or penalties to be imposed for late reporting or non-compliance with the statutory duty. In oral evidence, NILGA questioned the usefulness of a statutory duty if sanctions could or would not be imposed where it was not complied with.
34. Judicial reviews were cited as the “ultimate sanction,” although it was accepted that these can be costly. CiNI was of the view that the approach could instead be one of “carrot and not a stick in that, if you work together, you will improve outcomes and get better results and, ultimately, could save money by making that investment at the start.” NICVA suggested that there could be an element of “peer pressure” among departments to deliver on outcomes and that if “a Department is not playing ball or coming along, there will be sanctions from within.” 34
35. In his written response to the issues raised in evidence to the Committee, the Bill sponsor advised that he had considered the issue of sanctions but was unable to identify any which he believed were appropriate. He stated that “the requirement to report on co-operation and the ultimate sanction, a judicial review, is sufficient method of holding the Government to account.” 35 The Committee explored this matter further during the final evidence session with the Bill sponsor on 27 April. Mr Agnew advised Members
“I still have not got a concrete example from anyone of what a sanction could look like, other than fines. I do not see how fining a Department for not delivering services to children will help children. I think that the ultimate sanction is always judicial review, which is not in anyone’s interest. It is always the ultimate sanction. The Department should work cooperatively to avoid such a sanction.” 36
36. The Committee noted that it is difficult to provide a remedy to this issue where no potential sanctions have been identified, other than recourse to judicial review.
37. Not all respondents commented on the definitions included in the Bill, although the majority of those who did supported a definition of children and young people in line with The Commissioner for Children and Young People (NI) Order 2003 with just a few exceptions. In their written submission, representatives of parents caring for children with ABI stated that the Bill should cater for young people up to the age of 23 as this would “go further to meeting the needs of children and young people with ABI than the current transitions to adult services at age 18,” 37 but subsequently confirmed in oral evidence that they were content with the proposed definition. 38 NILGA advised it was its understanding that “there is no standard approach to how councils define young people, with the inclusion of under 25’s applying in some approaches” and urged that consideration was given to the implications of the proposed definition. 39 In oral evidence, Belfast City Council advised that, when necessary, it looks to the UNCRC which provides that young people are aged under 21 years, although the Council provides family services and funding and also supports a student body in the city. The representative concluded “We are undecided, but we are mindful that still needs reflection.” 40
38. The CLC advised that it would wish to see a definition of functions included in clause 5 and pointed to s98(1) of the Northern Ireland Act 1998 in this regard. 41 42 During the Committee’s post-evidence deliberations on the Bill, Members noted that s46 of the Interpretation (Northern Ireland) Act 1954 states “’functions’ shall include jurisdictions, powers and duties.” 43
39. In its written submission the NSPCC advised that, with regard to clause 4, it should be made clear that references to “the Department” refer to the Department of Health, Social Services and Public Safety (DHSSPS).
40. A number of those who responded to the Committee considered that it would be helpful if there was statutory guidance to accompany the Bill, including CLC, the NSPCC, CiNI and Ann Godfrey. It was felt that this would help ensure that all parties understood their obligations under the legislation. CLC, for example, believe that such guidance would be “of considerable assistance in the practical interpretation of the legislation and to aid legal compliance with the legislation” 44 and that it “holds sway with decision-makers.” 45 CiNI also advised that, as well as guidance, there should be a “memorandum of understanding for Departments and agencies so that everybody knows what their statutory obligations are and how to carry those out.” 46
41. In his written response to the issues that arose in the evidence the Bill sponsor noted his agreement with the suggestions that statutory guidance be developed, advising that “statutory guidance accompanied the 2004 Children’s Act and this ought to be something that the Department considers for this bill.” In subsequent oral evidence to the Committee he advised that it is not uncommon for such guidance to follow legislation, but that he considered it to be outside the legislation.
OFMDFM Proposed Amendments
42. In a paper to the Committee dated 23 April and a subsequent briefing on 27 April, OFMDFM set out its assessment of the Bill and early thoughts on potential amendments. 47 The Department advised that it believed the amendments being considered would address concerns it had regarding the Bill while delivering against the Bill sponsor’s intentions.
43. The Department’s proposals included: a purpose clause to set out the general aims of the Bill; placing a duty on the Executive to put arrangements in place to ensure co-operation by Departments, agencies and other relevant partners; to require the Executive to bring forward a strategy for children and young people with clear, evidence-based outcomes; for the Executive to report regularly to the Assembly on delivery and co-operation; and a memorandum of understanding in respect to the pooling of budgets. In addition, rather than amend the Children’s Order as set out at clause 4 of the Bill as introduced, OFMDFM suggested that there should be a standalone provision with a relevant Department being responsible for the development and delivery of the plan, under the authority of the Executive.
44. Following its deliberations on 13 May the Committee agreed that it was broadly supportive in principle of the direction that OFMDFM was proceeding in respect of potential amendments to the Bill, subject to sight of the text of the proposed amendments. The Committee also requested views or clarification from the Department on a number of points including: referencing UNCRC on the face of the Bill; consultation with children and young people; and potential conflict with local councils’ power of wellbeing. 48
45. OFMDFM wrote to the Committee on 11 June to advise that officials had worked with the Office of the Legislative Counsel (OLC) to look at appropriate amendments to the Bill which were “designed to alleviate the concerns raised while ensuring that the Bill would deliver against the key objectives proposed by Mr Agnew.” 49 Rather than providing amendments to the Bill as introduced, OLC prepared a revised draft Bill with 9 clauses. Departmental officials briefed the Committee on the substantive provisions of the revised draft Bill at the meeting on 17 June. 50 With the exception of clause 4 (see paragraph 51 below) officials advised that there may be some things to “tighten up” but that they were “reasonably content” with the vast majority of the revised draft Bill. The Committee noted that amendments proposed by the Department will require the support of the wider Executive.
Well-being of children and young persons
46. Members heard that clause 1 of the revised draft Bill specifies that the purpose of the Bill is to improve the well-being of children and young people. Officials advised that they did not believe it would be appropriate to include high level outcomes from the children’s strategy in legislation; therefore, high level policy outcomes have been used to set out the meaning of ‘well-being.’ It may not be necessary to change the legislation in the event that the high level outcomes in the new children’s strategy, due in 2016, differ from those in the current strategy, provided the new outcomes link to the parameters at 1(2); however, the clause includes an enabling power for the First and deputy First Ministers to amend the legislation if required.
47. The Committee agreed that it was broadly content with the Department’s proposal.
Co-operation to improve well-being
48. The second clause in the revised draft Bill imposes a duty on all Departments, agencies and other bodies to co-operate with each other and with other children’s services providers to improve the well-being of children and young people. It also places a duty on the Executive to promote co-operation. Following discussion with Members, the officials undertook to consider the use of “advance” rather than “promote” with OLC colleagues. Officials also clarified that the inclusion of Northern Ireland departments within the meaning of “children’s authority” would extend to non-departmental public bodies or arm’s length bodies that fall under a department and are not necessarily separate in statute. In response to questions officials advised that the term “so far as is consistent with the proper exercise of their functions” is not intended to be a get out clause; rather, it is a recognition that departments will perform other functions that are not related to the delivery of children’s services and ensures that they “suddenly do not have to stop their core business and think about the impact on children and young people on every single issue.”
49. The Committee was again broadly content with the proposals, with Mr Atwood advising that he would reserve his position until all matters had been considered in more detail.
Children and young persons strategy
50. Clause 3 in the revised draft Bill requires the Executive to bring forward a strategy to improve the well-being of children and young people. It sets out what should be included in the strategy and the requirements in respect of consultation, including consultation with children and young people, parents, guardians and representative groups. Officials stressed that this did not change the overall principle of consultation on policy development, but they wished to see consultation with children embedded in this Bill.
Children and young persons plan
51. It is proposed that the Executive will be required to adopt a plan setting out how children’s services will be planned, commissioned and delivered to support the achievement of the strategy. However, officials advised that they still do not believe that clause 4 in the revised draft Bill will deliver what is required and, indeed, a further clause may be required. In this regard, discussions are ongoing with the CYPSP, DHSSPS and DE in relation to a statutory partnership comprising members of the HSCB, Health and Social Care Trusts, the Education Authority and other relevant agencies within those two Departments. This statutory partnership would be enabled to develop and deliver the plan.
Sharing of resources and pooling of funds
52. In respect of the pooling of budgets and sharing of resources, officials advised that Mr Agnew’s intention is reflected in the new clause 5, which remains an enabling power. They pointed out that a technical amendment may also be required to enable departments to establish a fund in the first instance as well as to pool budgets.
Report on the operation of this Act
53. To address concerns that the co-operation report at clause 2 of the Bill as introduced was too focused on process, the report proposed in OFMDFM’s amendments will include a range of information such as: actions taken to achieve the outcomes in the strategy; progress made in the achievement of the outcomes; whether or not the well-being of children and young people has improved; and the co-operation that has taken place across departments and how it could be improved. Although the Bill proposes that the Executive reports formally every three years, officials stressed that this will not preclude annual reporting being carried out at lower levels.
54. Clause 7 of the revised draft Bill provides a list of meanings for various terms used, including “children’s authority,” “children’s service” and “other children’s service provider.” In response to a Member’s query, officials advised that it was their understanding that the Council for Catholic Maintained Schools is a statutory body which would not be bound by the legislation unless named, although further clarification is being sought on this matter and in respect of other bodies such as the Northern Ireland Housing Executive.
55. Clause 7(3) of the revised draft Bill provides that:
(3) A person falls within this subsection if the person –
(a) is under the age of 21 years, and
(b) is a disabled person within the meaning of the Disability Discrimination Act 1995.
Officials advised that DE had raised concerns about this provision and that it may need to be changed. They noted that there may be some young people with particular circumstances who are “slipping through, in that they are not treated as children and are not being treated, as they need to be, as adults.”
56. The revised draft Bill specifies that the Act will come into operation on the day after Royal Assent is received. The strategy and plan must both be laid before the Assembly within one year of the date that the Act receives Royal Assent.
Clause by Clause Consideration
57. The Committee undertook formal clause by clause consideration of the Bill at its meeting on 24 June. Regrettably, the final version of the OFMDFM amendments was not available by that date. The Committee therefore took account of the revised draft Bill that had been provided by the Department on 11 June and discussed with officials on 17 June, whilst acknowledging that further amendments will be required. A copy of the revised draft Bill is provided at Appendix 5.
58. In its formal clause by clause consideration of the Bill, the Committee was mindful that the Bill sponsor had indicated that he was content of the direction of travel proposed by OFMDFM as set out in the revised draft Bill, subject to sight of the final amendments. The Bill sponsor had also provided the Committee with his initial response to OFMDFM for reference during clause by clause consideration.
59. The Committee agreed that it had always been broadly supportive of the principles of the Bill.
Clause 1: General Duty
60. This clause places a duty on departments to work towards the achievement of six specified outcomes relating to children and young people; and requires departments to co-operate in order to further the achievement of those objectives. The specified outcomes are:
a) being healthy;
b) enjoying learning and achieving;
c) living in safety and with stability;
d) experiencing economic and environmental well-being;
e) contributing positively to community and society; and
f) living in a society which respects their rights.
These reflect the outcomes included in the 10-year strategy for children and young people in Northern Ireland 2006-16. 51 The clause also allows OFMDFM to amend the outcomes by means of subordinate legislation.
61. The Committee agreed that it was not content with clause 1 as drafted.
62. The Committee agreed that it was broadly content with the direction of travel indicated by OFMDFM in clause 1 “Well-being of children and young persons” in the revised draft Bill, subject to sight of the final wording of the proposed amendment.
63. The Committee agreed that it was broadly content with the direction of travel indicated by OFMDFM in clause 2 “Co-operation to improve well-being” in the revised draft Bill, subject to sight of the final wording of the proposed amendment.
64. The Committee noted that Mr Agnew had suggested that the wording “so far as is consistent with the proper exercise of its children functions” at 2(1) of the Department’s revised draft Bill should be removed.
Clause 2 – Co-operation Report
65. Clause 2 requires OFMDFM to publish a report at intervals of not more than three years detailing: progress of departments towards achieving the specified outcomes; the extent to which they have co-operated; and efficiencies achieved and opportunities identified for further co-operation. Departments are also required to co-operate with OFMDFM in the preparation of the report.
66. The Committee agreed that it was not content with clause 2 as drafted.
67. The Committee agreed that it was broadly content with the direction of travel indicated by OFMDFM in the revised draft Bill at clause 6 “Report on the operation of this Act,” subject to sight of the final wording of the proposed amendment.
68. The Committee noted that Mr Agnew expressed a preference for the report to be conducted by an independent body.
Clause 3: Sharing resources and pooling funds
69. This clause enables but does not require departments to establish pooled budgets and share resources to achieve the six outcomes specified in the Bill.
70. The Committee agreed that it was not content with clause 3 as drafted.
71. The Committee agreed that it was broadly content with the direction of travel indicated by OFMDFM at clause 5 “Sharing of resources and pooling of funds” in the revised draft Bill, subject to sight of the final wording of the proposed amendment.
Clause 4: Amendment of the Children (Northern Ireland) Order 1995
72. Clause 4 amends the Children (Northern Ireland) Order 1995 substituting the existing paragraph of 2A of Schedule 2 with more detailed provision. This will replace the current duty on the Regional Health and Social Care Board (“the Regional Board”) to review and publish a children’s plan with the requirement to review and publish a children and young people’s plan, and lists a number of public bodies required to cooperate with each other in the planning, commissioning and delivery of children and young people’s services.
73. The Committee agreed that it was not content with clause 4 as drafted.
74. The Committee noted OFMDFM’s proposals to place a duty on the Executive to adopt a children and young persons strategy at clause 3 of the revised draft Bill; and the proposal that the Executive adopts a children and young persons plan at clause 4 of the revised draft Bill. The Committee understands that the Department is actively considering further amendments and its support or otherwise is dependent on sight of the final amendments.
Clause 5: Interpretation
75. This clause defines children and young people in accordance with the meaning prescribed in The Commissioner for Children and Young People (NI) Order 2003 52 – that is, a child or young person is defined as a person under the age of 18 or under the age of 21 if they have a disability or are/have been in care. It also defines “the Office” as the Office of the First Minister and deputy First Minister.
76. The Committee agreed that it was not content with clause 5 as drafted.
77. The Committee was broadly content with the direction of travel indicated by OFMDFM in the revised draft Bill at clause 7 “Interpretation”, but is conscious that further amendment to this provision was required. The Committee indicated that it was not in a position to endorse this provision without sight of the final wording.
Clause 6: Short Title
78. This clause states that “This Act may be cited as the Children’s Services Co-operation Act (Northern Ireland) 2015.”
79. The Committee agreed that it was content with clause 6 as drafted; and noted that this was clause 9 in the revised draft Bill provided by OFMDFM.
80. “A Bill to require Northern Ireland departments to discharge their functions and co-operate with one another in order to contribute to the achievement of certain specified outcomes relating to the well-being of children and young people, and to amend the Children (Northern Ireland) Order 1995.”
81. The Committee agreed that it was content with the long title of the Bill, subject to the Department’s proposed amendment as set out in the revised draft Bill.
You can download the full report here.
3 Appendix 2: Ann Godfrey oral evidence
4 Appendix 2: HSCB oral evidence
5 Appendix 2: COT/RNIB/MS Maria Treacy oral evidence
6 Appendix 3: NSPCC written submission
7 Appendix 2: Belfast City Council/NILGA oral evidence
9 Appendix 3: DE and DHSSPS written submissions
10 Appendix 2: COT/RNIB/Ms Maria Treacy oral evidence
11 Appendix 3: CLC written submission
12 Appendix 2: NICCY oral evidence
13 Appendix 4: Bill sponsor - response to clause by clause summary of responses
14 Appendix 2: CiNI/NSPCC/NICVA/Playboard NI oral evidence
15 Appendix 2: CLC oral evidence
16 Appendix 3: DE written submission
17 Appendix 5: OFMDFM paper of 23 April 2015
18 Appendix 2: OFMDFM oral evidence 27 April 2015
20 Appendix 2: HSCB oral evidence
21 Appendix 2: CiNI/NSPCC/NICVA/Playboard NI oral evidence
22 Appendix 2: Ann Godfrey oral evidence
23 Appendix 3: CiNI and Playboard NI written submissions
24 Appendix 2: NICCY oral evidence
25 Appendix 5: OFMDFM paper 23 April 2015
26 Appendix 2: Steven Agnew MLA and Ross Brown oral evidence 27 April 2015
27 Appendix 2: Steven Agnew and Ross Brown oral evidence 14 January 2015; OFMDFM oral evidence 14 January 2015
28 Appendix 3: NICCY written submission
29 Appendix 3: CiNI written submission
30 Appendix 2: HSCB oral evidence
31 Appendix 3: NILGA written submission
32 Appendix 6: Health Minister’s correspondence 11 May 2015
33 Appendix 3: NSPCC written submission
34 Appendix 2: CiNI/NSPCC/NICVA/PlayboardNI oral evidence
35 Appendix 4: Bill sponsor - response to clause by clause summary of responses
36 Appendix 2: Steven Agnew and Ross Brown oral evidence, 27 April 2015
37 Appendix 3: Parents Caring for Children with ABI written submission
38 Appendix 2: COT/RNIB/Ms Maria Treacy oral evidence
39 Appendix 3: NILGA written submission
40 Appendix 2: Belfast City Council/ NILGA oral evidence
41 Appendix 3: CLC written submission
42 S98(1) of the Northern Ireland Act 1998 states that ‘”functions” includes powers and duties.’
See http://www.legislation.gov.uk/ukpga/1998/47/section/98 (accessed 11 June 2015)
43 http://www.legislation.gov.uk/apni/1954/33/section/46 (accessed 11 June 2015)
44 Appendix 3: CLC written submission
45 Appendix 2: CLC oral evidence
46 Appendix 2: CiNI/NSPCC/NICVA/Playboard NI oral evidence
47 The OFMDFM paper is at Appendix 5 and the transcript of the oral evidence is at Appendix 2.
48 Appendix 6:Letter from Committee Clerk to OFMDFM
49 Appendix 5: OFMDFM paper 11 June 2015
50 Appendix 2: OFMDFM oral evidence 17 June 2015