I beg to move amendment 24, in clause 10, page 16, line 39, at end insert —

“(8A) After subsection (9) insert —

‘(10) Where a child is kept in secure accommodation under this section, the relevant local authority has a duty to provide therapeutic treatment for the child.’”

This amendment would place a duty on local authorities to provide treatment for children in secure accommodation.

With this it will be convenient to discuss clause stand part.

We have come to a particularly serious clause—not that the other clauses are not serious, but the use of deprivation of liberty orders for children is always deeply troubling, as is the rise in the number of children who are subject to them. I share the wish of the Children’s Commissioner to see an end to this practice and an end to the use of unregistered provision.

We have seen an increase in the number of young children—including two aged seven last year and 200 under 13—given deprivation of liberty orders. There is nothing in the Bill to differentiate by the child’s age or stage. What consideration has the Minister given to that point? There is something about the use of the orders on very young children that is particularly striking.

When a young child goes into secure accommodation, the Secretary of State has to sign it off, but no sign-off is required from the Secretary of State on deprivation of liberty orders. Why not? The Government are keen on consistency elsewhere in the Bill. Will they bring the same consistency to this clause?

More broadly, do we not need greater clarity on the mechanism for restricting children’s liberty outside a secure institution? I am sure that Members of the other place will be very interested in that question. As the Children’s Commissioner has written, some of the children concerned have physical and learning disabilities, and many are at risk of criminal or sexual exploitation or both. Will the Minister act on the Children’s Commissioner’s recommendation and introduce a proper legal framework and guidance? We believe that much more clarity is needed in the Bill on therapeutic care for those who are under a deprivation of liberty order. Historically, there has been a lot of focus on containment. This amendment is, I suppose, our legislative prod to take the opportunity to think about what therapeutic help a child needs and how to deliver it.

I want to put to the Minister some very important points that Jacky Tiotto of CAFCASS made to us last Tuesday. She welcomed a lot of the provisions but said that at present the Bill is

“a missed opportunity to deal with the arrangements around deprivation…some better, stronger regulations could be made for those children—who, let us face it, are actually being secured, or deprived of their liberty.”

She raised several specific points that I will put to the Minister. She said:

“Our data shows that 20% of those children are aged 13 or under. Currently, if a local authority applies for a place in a secure unit for a child aged 13 or under, the Secretary of State for Education has to approve that application. I think an assumption is made in the Bill that that strength would remain in the amendment. We need to make it clear that, for all applications for 13-and-unders into places where they will be deprived, the Secretary of State should still approve. That has been unnecessary because the courts have been using their jurisdiction to deprive children. This clause will remove that, and make the accommodation usable legally, but we need to ensure that for young children it comes back”— by “it”, I think she meant Secretary of State sign-off. Will Ministers amend that provision? They do not necessarily need to answer one way or another today, but I will be grateful if they write to me on the point. At some point in the Bill’s passage through Parliament, I hope that they will reply to the specific point about Secretary of State sign-off.

The head of CAFCASS also said that

“for those young children, the review of their deprivation should be stipulated in terms of how regularly that deprivation is reviewed. For a 10-year-old deprived of their liberty, a week is a long time.”

That is a good point. She continued:

“The children who we work with tell us that they do not know what they have to do to not be deprived of their liberty, and very young children will be confused. So the frequency of review, I think, becomes more regular if you are younger.”

That is a specific and on-point suggestion from someone who really knows their stuff. Might Ministers take up that suggestion from CAFCASS and start to specify frequency of review? Might they take up her point about making reviews more frequent and clearer for young and very confused children?

Jacky Tiotto made another specific point—so specific that it is worth my reading it out. She said that

“the Department for Education should definitely consider what has happened to the child before the deprivation application is made. From our data, only 7% of those children were the subject of child protection plans, and it is hard to imagine going from not being protected by a statutory child protection plan to being in a court where they might deprive you. The relationship between child protection and deprivation needs strengthening.”––[Official Report, Children’s Wellbeing and Schools Public Bill Committee, 21 January 2025; c. 32-33, Q72.]

To that end, she suggested:

“As soon as that child becomes the subject of a concern, such that you might be making an application to deprive, you hold a child protection conference and you have a plan in place to protect that child beyond the deprivation”––[Official Report, Children’s Wellbeing and Schools Public Bill Committee, 21 January 2025; c. 33, Q73.]

Is that something that Ministers would be happy to specify? What do they think of that argument?

The Bill leaves a lot to be specified in regulations. In the Department for Education’s explanatory notes to the Bill, we are told:

“Any specific requirements for the new accommodation will be included in regulations that will be informed by learnings from the pilots specifically testing the sort of accommodation and the cohorts of children that local authorities are looking to place in this alternative accommodation using these new powers.”

May I ask the Minister what learning and experience have been gained from those pilots? What has been shared with the Department so far? When does he expect the Department to be in a position to develop more detailed requirements for the regulations? Are we likely to see them this year, assuming Royal Assent, or are they a bit further away?

Last but not least, there is a connection between the issues raised by clause 10 and those that we will come on to when we debate clauses 11 to 13. In written evidence to the Committee, the Children’s Commissioner noted that

“in the Children’s Commissioner’s report ‘Illegal Children’s Homes’, the office found that of 775 children living in unregistered placements on 1 September 2024, almost a third (31%) were subject to a court-ordered DoL. The placement of these highly vulnerable children in wholly illegal settings is deeply concerning.”

I wonder whether the Minister will address that point, either by amending clause 10 or by amending later clauses.

Let me recap for the Minister’s benefit. There is the suggestion that the requirement for the Secretary of State to give approval for children aged 13 or under be made clear; there is the suggestion from CAFCASS that we specify in the Bill that review be more frequent for younger children; there is the question about automatically having a child protection plan in place for when the child leaves the deprivation; and then, from the Children’s Commissioner, there is a call for action on the large proportion of children on deprivation of liberty orders who are currently being placed into illegal settings. Effectively, those are the four questions that the expert community is putting to us.

Clause 10 will amend the Children Act 1989 such that local authorities can authorise deprivation of liberty of children other than only in a secure children’s home, and will change the term “restricting liberty” to “depriving of liberty”.

In the secure children’s home sector, a distinction is often made between what are called justice beds and welfare beds. There are also children detained under the Mental Health Act 1983 on secure mental health wards and in psychiatric intensive care units, or on non-secure wards. I am assuming that we are talking today only about what are known as welfare beds—I say “beds”, but normally the entire facility is either one or the other.

To speak on justice beds briefly, there has been a big fall in this country since 2010 in the number of children who are locked up in the criminal justice system: the numbers are down from about 2,000 in 2010 to only around 500 now. That has partly been because of a fall in crime, and in the particular types of crime for which young people used to be locked up, but it is also because of the good work of youth offending teams. Most of those children are older and would typically be in a young offenders institution when aged 15 to 17, or indeed, 18 to 21. The very small group of children who are in the secure children’s home sector are a very difficult and troubled cohort of youngsters with complex pasts. I take a moment to pay tribute to the staff; it is an extraordinary career decision to go into that line of work, and they do it with amazing dedication.

The welfare bed part of the secure children’s home sector is where somebody has had their liberty restricted not because of something they have done, but because of something they might do—because of the danger or threat they pose either to themselves or others. It is an enormous decision to take to deprive anybody of liberty on those grounds, but particularly a child. As with those children who are in the criminal justice part of the secure children’s home sector, these are typically extremely troubled children.

On the change in clause 10 to allow local authorities to house those children somewhere other than a secure children’s home, the obvious question to the Minister is “Why that, rather than ensuring that a secure children’s home is properly catering to the needs of that cohort of children?” I am not saying that it is the wrong decision, by the way, but I am interested to know, and it is good to have it on record, why it is a better decision to say, “Let’s take some or all of these children and house them in a different type of facility.” What have the Minister and the Secretary of State in mind for the alternative accommodation that would be set out in regulations? For the benefit of the Committee, and again for the record, it might also be helpful to define what is different. The Minister might clarify the definition of a secure children’s home and explain what it is that we need to deviate from.

My other question is about the change in phraseology. We are talking about moving from the restricting of liberty to the depriving of liberty. I understand from the explanatory notes that this tries to reflect the reality, but it is a legitimate question whether it is a strictly necessary change to make and what the reasoning is. Even when we do deprive people of liberty, we do not deprive them of all their liberty. There are degrees of restriction. We have this as a feature in the criminal justice system, and though this is a different cohort of children, some of the same principles may apply. We may be able to get a lot of the benefit we are looking for from restricting someone’s liberty rather than entirely depriving them of it. I wonder if the Minister might say a word about that distinction and about whether the Government have received representations on the change in wording.

My understanding is that this change follows a trend of children being deprived of their liberty outside the statutory route by being housed in unsuitable accommodation not registered with Ofsted, often far from home and family. That has been partly addressed in the questions from the hon. Member for Harborough, Oadby and Wigston.

The success of this provision will depend on the regulations. What actually makes a setting capable of being used for the deprivation of liberty? Will there be a requirement with respect to education in that setting? Will they need to be registered with Ofsted? It is not entirely clear. When will regulations relating to this provision be brought forward? Is it the intention that they will mirror the scheme for the secure accommodation?

The law around the deprivation of liberty is incredibly complex. Without proper legal advice and representation, it is very hard for families to understand what is going on and what options they have. It is not clear yet what legal aid will be available to families or the child themselves when an application is made under the new route. Can the Minister clarify what will be available with respect to legal aid, or put a timetable on when we will get that clarification?

Amendment 24 seeks to place a legal duty on local authorities to provide therapeutic treatment for children placed in secure accommodation—that is, a secure children’s home. The Government’s view is that the amendment is not necessary as there are a number of existing legal duties on local authorities to ensure that wherever children are placed, including in secure accommodation, their needs are met, including the needs for therapeutic treatment. This is part of the duty on local authorities, under primary legislation, to safeguard and promote the welfare of any child that they look after.

Any placement decision for a looked-after child must be informed by the care plan, which a local authority is required to prepare for all looked-after children. The local authority must understand fully the services offered and how the provider intends to care for the child, which should be based on robust evidence that supports the appropriateness and effectiveness of any therapeutic approach or model of care that the provider intends to use. This will apply equally to a placement in a secure children’s home as it will to other residential placements, including relevant accommodation outlined in the clause.

The care plan must be shared with the secure children’s home’s registered manager and be kept under regular review. The care plan must contain arrangements made by the local authority to meet the child’s needs, including in relation to health, which must be included in the health plan—that forms part of the care plan—and in relation to the child’s emotional and behavioural development.

The Government recognise that as part of ensuring that children have access to the most appropriate therapeutic support in secure accommodation, children should be provided with appropriate healthcare services. As such, in addition to the duty on local authorities to take reasonable steps to ensure that the child is provided with access to appropriate healthcare services, NHS England has statutory responsibility for the direct commissioning of health services or facilities for children in secure accommodation.

In addition, NHS England retains a duty around any health provision that is specified in a child’s education, health and care plan. The duty means that any health services specified must be provided, where possible, within the bounds of what is already commissioned. For the reasons that I have outlined, I ask the shadow Minister to withdraw the amendment.

I turn to clause 10, which, through amendments to section 25 of the Children Act 1989, allows for children to be deprived of liberty in provision other than a secure children’s home under a statutory framework, with the associated benefits that this brings, including access to regular review points and easier access to legal aid. This provision will create a statutory basis for a court-authorised deprivation of liberty in accommodation best suited to meeting the needs of some of the most vulnerable children, where care and treatment are provided, and where restrictions that amount to deprivation of liberty in connection with the provision of that care and treatment, if required to keep children safe, can also be imposed.

As Members will know, due to a lack of sufficient suitable placement options available to local authorities, many children are currently being placed in unregistered provision or in open children’s homes, where they are deprived of their liberty under authorisation of the High Court under its inherent jurisdiction, rather than under a statutory framework. Inherent jurisdiction is intended only as a step of last resort, typically to keep a child safe when no other legal route or statutory mechanism is available. Its routine use is therefore problematic and reflective of a lack of provision designed to meet all the needs of a small but growing cohort of children looked after by local authorities.

This change to legislation is being made in conjunction with a range of practical steps that we are taking as a Government to support the growth of new types of community-based provision needed for this vulnerable cohort of children. A Department for Education and NHS England-led programme of work is supporting local authorities and health partners with investment and resources to improve their assessment of need, improve commissioning practices, and develop a whole pathway as well as individual placements that better suit these children’s needs.

Clause 10 will allow for children to be placed in such new types of placements that provide suitable care and treatment and that are also capable of imposing varying restrictions on children’s liberty linked to their fluctuating needs. That could include the ability to place greater restriction on a child’s liberty that amounts to deprivation, where necessary, in connection with the care and treatment being provided at that accommodation, while also being able to reduce the restrictions, where appropriate, without the child needing to be moved out of the accommodation, which is currently the case for children who are placed in secure children’s homes. Children can therefore maintain community links, practitioners can develop long-term and appropriate pathways and children will benefit from access to a skilled, multidisciplinary workforce that can provide for them for the long term.

We anticipate that this measure will reduce the use of deprivation of liberty orders applied for under the High Court’s inherent jurisdiction and ensure that children benefit from the protections afforded by a statutory scheme, with a framework of clear safeguards and mandatory review points, to ensure that no child is deprived of their liberty longer than necessary. Additionally, this change will signal to local authorities, other key sector partners and providers of children’s residential provision Parliament’s endorsement of and commitment to these placement options, supporting them to grow and reducing dependency on poor-quality, expensive, unregistered placements. This will ensure that some of the most vulnerable children are kept safe and given the support to get on well in life, improving their lived experience by ensuring that there is appropriate support, including community links, health access and so on, to assist them to develop to their full potential.

I am grateful to the Minister for his informative speech, but can I press him to respond to the specific points made by CAFCASS and the Children’s Commissioner? The Minister is alluding to some of them as he goes along. The first is about requiring explicit Secretary of State approval beforehand. The second is about specifying the frequency of review, particularly for younger children. The third is about having an automatic requirement for children’s protection plans as the child comes out. The fourth, which the Minister has alluded to, is about them being put into illegal settings, and whether something legislative should be done at this point to stop that from happening at all.

I am coming to the end of my speech and hope to answer the points that the Opposition spokesperson made. I will certainly take away the issues that he raised.

I thank all Members for their contributions and questions on this very important matter. On consistency, the views of the Children’s Commissioner and age, I know that this point was raised in the other place only yesterday by a former Minister, and I am grateful for that. It is worth saying here, too, that the child rights impact assessment is informing our work on the Bill. I give the shadow Minister the assurance today that I will take on board these comments.

Is the child rights impact assessment for the Bill published so that we can see it?

There is no legal obligation for England to publish that assessment, but we are certainly using it to inform our work on the Bill.

I think Ministers have said in previous sittings that it will be published during the process of scrutiny, along with the impact assessment. Is that still the case?

I am referring to the conducted children’s rights impact assessment, where children are directly impacted by the policies and/or particular groups of children and young people are more likely to be affected by others. As I mentioned, there is no requirement to publish these documents in England. However, the documents are currently under review and we will advise on our next steps shortly. More broadly, with regards to the impact assessments, these will be published in due course.

I thought I had heard Ministers say previously that they were planning to publish this for our benefit—that we would get both the impact assessment and the children’s rights assessment. Perhaps it is me who is sowing confusion and the Minister may still intend to publish this document. I cannot see any reason why the Government would not publish it, so can I get an assurance that that is going to be published?

To state this clearly, the impact assessment has not yet been published but is obviously informing our work. Obviously, various different assessments are undertaken and I will certainly get back to the hon. Member on those points.

The Minister has said a number of times that, by law, the child rights impact assessment does not have to be published. In the interests of transparency and for all of us to do the right thing by children, does he not agree that even if he does not have to publish it, he really ought to do so?

To be clear, we will be publishing the regulatory impact assessments. We will certainly be using the evidence from the children’s rights impact assessments to inform our work.

I turn to the points raised by the Opposition spokesperson on placements of children under the age of 13. Depriving a child of their liberty must always be a last resort, but it is sometimes necessary to keep that child and others safe. These children are some of the most vulnerable in our society. We must do all that we can to keep them safe and help them get on well in life. When a child under the age of 13 is deprived of their liberty and placed in a secure children’s home, the local authority must obtain approval from the Secretary of State before applying to the court. That requirement is set out in regulations that reflect the added seriousness of depriving children so young of their liberty.

The Opposition spokesperson and Damian Hinds also made a number of broader points about child protection plans and deprivation of liberty. Local authorities’ care-planning duties are clear that when there are looked-after children, they must have a long-term plan for a child’s upbringing, including arrangements to support their health, education, emotional and behavioural development, and their self-care skills.

The statutory guidance “Working together to safeguard children 2023” is clear about the actions that local authorities and their partners should take, under section 47 of the Children’s Act 1989, if a child is suffering or likely to suffer significant harm, as well as the support that should be provided under section 17. If there is a concern about a child’s suffering, or if a child is likely to suffer significant harm, the local authority has a duty to make an inquiry under that Act. “Working together to safeguard children” sets out the actions that the local authority and their partners must take when there are child protection concerns. That includes putting in place child protection plans when concerns are submitted. I hope that the Committee agrees that the clause should stand part.

I hope that we can clear up the confusion about whether we will see the children’s rights assessment. I cannot see any good reason why we would not be able to see that perfectly routine assessment. None of these things is the end of the world, but not having the impact assessment of the thing that we are quite deep into line-by-line scrutiny of seems to further compound this problem. Obviously, no one can defend that; it is not good practice.

I slightly pre-empted what the Minister said—he had scribbled some last remarks—but I was glad that he came to some of the points raised by CAFCASS and the Children’s Commissioner. I raised them partly because I know that their lordships will be extremely interested in these specific questions. There probably is scope for improvement of this clause to do some of those other good things, because this is such a serious issue for those very young children.

We will not vote against clause stand part, but I will press our amendment to a vote. I heard what the Minister said, but I just make the point that there is scope for improvement in the clause, and I suspect that their lordships will provide it.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 11.

Question accordingly negatived.

Clause 10 ordered to stand part of the Bill.