Far-reaching concerns

Many organisations and individuals expressed serious concerns about social care exemptions, during the passage of the Children and Social Work Act 2017.

Here’s a selection of extracts from published statements. (Postscript: our lobbying was completely successful: the exemption clauses were removed from the Bill weeks before it gained Royal Assent in April 2017).

“… the scope of the power is very broad in that it will allow changes to be made to a very wide range of children’s social care legislation … the power will allow, in a very wide range of circumstances which cannot yet be predicted, the removal of statutory requirements which may themselves have been imposed with a view to ensuring that children are given certain protections, rights or benefits.”
Delegated Powers and Regulatory Reform Committee
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“I fear that even well intentioned exemptions from, or modifications to, legal requirements, honestly aimed at improving outcomes, may inadvertently miss out the detailed requirements that protect children against failures in the placement system. In my past work, I have found, and published, worrying levels of failures in the placement system. I have also in my past casework found the detail of legal requirements essential in securing redress and better service for individual children in this and other areas of care practice.”
Dr Roger Morgan OBE, Children’s Rights Director 2001-2014
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“The RCPCH greatly welcomed the removal of the controversial Clause 29, which would have enabled “a local authority in England to test different ways of working with a view to achieving better outcomes under children’s social care legislation or achieving the same outcomes more efficiently”. Whilst we agree in principle with exploring innovative ways of working with children and young people – and we know that many areas already do – we do not believe that allowing local authorities to step outside a legislative framework is the best way of achieving this.

“We are thus concerned to see New Clauses NC2-NC9, as tabled last week, which would reintroduce the clauses to give local authorities powers to test different ways of working. Although we note that these New Clauses are more expansive in their proposals for what these powers would look like and what local authorities would be obliged to do, we continue to oppose for the reason stated above. Local authorities already explore innovative practices for working with looked-after children, and there is no need to introduce a legislative exemption – which could potentially result in unintended consequences detrimental to child protection – allowing them to do so.”
Royal College of Paediatrics and Child Health, December 2016
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“The mechanism for innovation set out in the Bill would allow the subversion of the rule of law and proper parliamentary process.”
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“The Children and Social Work Bill, currently in the House of Lords, includes provisions that would allow the Secretary of State to exempt local authorities in England from particular children’s social care legislation in order for them to test innovative and new ways of working. These provisions would have significant implications and challenges for the [Local Government Ombudsman]. In order to ensure effective accountability and redress for children and young people when things go wrong, the Ombudsman will need to adopt equally innovative approaches and benchmarks when investigating a complaint about a local authority area operating with exemption from its statutory duties.”
Local Government Ombudsman
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“The power to suspend statutes is something which you might expect to encounter during time of war, or other great national emergency.  To propose the use of such arbitrary powers in order to conduct what can only be described as ‘experiments’ is a matter which should cause very real concern.”
Rodney Noon, Solicitor-Advocate and editor of Seen and Heard, Nagalro
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“The potential for certain fundamental rights and protections to be “suspended” for a period of up to 3 years without scrutiny is of concern to me, again this will be relevant to children placed across borders. Whilst the intention to ensure better outcomes for children is admirable, it is unclear to me how this will be achieved in practice through legislation which permits and even encourages local authorities to request an exemption from any particular aspects of children’s legislation that they find cumbersome or expensive. This will create different levels of entitlement to services from county to county and will make children’s rights and experiences more fractured and uncertain.”
Sally Holland, Children’s Commissioner for Wales
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“In conclusion, it is the unanimous view of this group that the proposed changes:

  • are unnecessary and based on the results of consultation with too few stakeholders;
  • would confer no real benefit while considerably increasing the risks to vulnerable children;
  • would result in poorer practice overall and a greater inconsistency between agencies;
  • would eliminate an important forum where the voices of children, their carers and those who have experience of the system are heard.

We urge the Government to withdraw the proposals in Clauses 29–32 immediately.”
Roy Stewart on behalf of CoramBAAF Independent Panel Chairs Group (London & South East)
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“I am astonished about the proposal to allow local authorities to be exempted from legislation governing children in care; the flexibility sought can be achieved without eroding children’s rights achieved over several decades. My experience previously as a social worker and many years within a local authority but particularly my experience developing the advocacy and children’s rights organisation Voice leaves me in no doubt that children and young people need these protections. Have the views of children been sought? If properly explained, I doubt they would feel confident about any loss of these protections. There are already problems with the postcode lottery: this proposed legislation would make matters worse. I have many years’ experience in the development of flexible responsive child-centred practice within current legislation. It is absolutely unnecessary to reduce the protection and rights of children and young people in care to achieve this.”
John Kemmis
Patron of National Association of Independent Reviewing Officers, former CEO Voice (retired)

“There are bad ideas. There are really bad ideas. And then there’s clauses 29-33 of the Children and Social Work Bill 2016. This handful of clauses, if approved by Parliament, will allow the Secretary of State to exempt local authorities in England from the requirements of children’s social care legislation in the guise of ‘test[ing] different ways of working’. At a stroke the Secretary of State could say that Durham doesn’t have to meet disabled children’s needs under section 2 of the Chronically Sick and Disabled Persons Act 1970, Doncaster can forget about parent carers’ needs assessments or Dudley can ignore the duties owed to young carers. In the alternative, the Secretary of State could modify the way in which these requirements apply rather than exempt them entirely, just to increase the overall level of confusion.”
Steve Broach, Barrister, Monckton Chambers, and co-author of Disabled Children: A Legal Handbook
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“… the children and families who may lose out – indeed who may be excluded from services altogether through this ‘opt-out’ provision – would be some of the most disempowered and least able to stand up for their rights.”
Guy Shennan, Chair, the British Association of Social Workers (BASW); Dr Ruth Allen, Chief Executive, the British Association of Social Workers (BASW); Professor Brid Featherstone, Co-President, Association of Professors of Social Work; Samantha Baron, Chair, Joint University Council Social Work Education Committee; Professor Michael Lavalette, National Convenor, Social Work Action Network; Bridget Robb, General Secretary, Social Workers Union; and Matthew Egan, National Officer for Social Work, UNISON
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“The ramifications and moral dubiousness of leaving vulnerable young people, care leavers and disabled children without vital legal protections in the name of achieving ‘outcomes more efficiently’ are obvious, in particular given the precarious financial situations of many local authorities.”
Sara Ogilvie, policy officer, Liberty
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“… when we make primary legal duties variable from one locality to the next the very idea of ‘the law of the land’ is turned into legal Swiss cheese, full of holes. And that weakens the rule of law for everyone.”
Kathy Evans, Chief Executive, Children England
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“It is only by calling local authorities to account and demanding they comply with their hard and fast legal duties to children and young people that we have been able to ensure hundreds of young people in and leaving jail get the help they need to make a fresh start.”
Frances Crook OBE, Chief Executive, Howard League for Penal Reform
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“Statutory duties serve to help local authorities (as the service provider) and children and families (recipients of services) to understand what is expected. Coram Children’s Legal Centre (CCLC) has a great deal of experience acting for children who are failed and where local authorities do not fulfil their duties to children. Duties should not act as a straight-jacket and local authorities should always provide the best possible services and support taking into account that the welfare of the child is the primary consideration. CCLC is concerned that if local authorities are mandated to opt out of certain statutory duties, this may present a risk to children and families who are struggling and require social care support.”
Noel Arnold, Director of Legal Practice at Coram Children’s Legal Centre
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“The [Magistrates Association] supports arguments put forward in the Lords that the broad powers expressed in clause 29 should only be implemented on the strongest evidence that such fundamental changes are necessary and will lead to better outcomes for children.”
Magistrates Association
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“This will create a system of inconsistencies between areas in terms of statutory powers and rights for children and families. Courts in one area could be working to different legal requirements to those across a local authority boundary.”
Ray Jones, Emeritus Professor of Social Work, 50 years in social care
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“If Clause [29] passes, where a child or young person lives will be one of the key determining factors in advising them what rights they have. Who will keep tally of which rights have been removed from whom and where?”
Carolyne Willow, Director, Article 39
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“… by providing a route for (initially) a few selected local authorities to divest themselves of (unspecified) duties introduced into legislation to help families in distressing circumstances, these proposed clauses open the door to the removal of crucial rights and services from some of our most disadvantaged citizens.”
June Thoburn CBE, Emeritus Professor of Social Work, 50 years in social care
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“Now it seems that the plan is to disband [adoption and fostering] panels in the use of the powers proposed by Clause [29] and in a piecemeal fashion. CoramBAAF could not be more opposed to this plan; believing that adoption and fostering panels play a crucial role in helping to decide whether someone is suitable to foster or adopt or that a child should be matched with prospective adopters. It is hard to think of a more important decision for a vulnerable child, and it is one that benefits enormously from the careful and independent scrutiny that panels provide.”
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“We believe that government has not made a clear enough case for the need to relax legislation to support innovation. In addition, we do not believe that the government has set out sufficient safeguards to ensure the approach poses no threat to the entitlements and well-being of children.”
National Children’s Bureau
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“… in the current context of chronic underfunding for local authorities and social care, and the financial difficulties many councils find themselves in, there is a risk that looked after children may suffer the consequences of these experiments. The RCN is calling for clarity around the proposals and a commitment from the Government that safeguards will be put in place to prevent the unintended consequence of eroding the rights of the child. We are also seeking assurances that introducing unacceptable variation in standards of care for the most vulnerable in our society.”
Royal College of Nursing
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“Primary legislation sets out the framework which must be applied in all localities within the nation regardless of local circumstance and thus in doing so regulates state interference in family life, sets out the rights of individuals including children to secure services and support and makes the state, and ‘organs of the state’ accountable. The children’s social care legislation that would be affected by these clauses has been incrementally introduced over a long period of time, each change taking place after a process of proposal, consultation, parliamentary scrutiny and debate.” Family Rights Group maintains the position that if a change is to be made to primary legislation then it should have national application. If legislation is inadequate, outdated, or ineffective, then amendments should be made to such legislation through the normal legislative and consultation process, rather than through a piecemeal approach allowing one or two authorities to get dispensation.
Family Rights Group
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“Parliamentarians will be asked to approve or oppose the regulations, with no opportunity to amend them. Once regulations have passed, those reliant on children’s social care will have lost whatever entitlements have been exempted. This could be the start of social care rights by geography.”
Carolyne Willow Director, Article 39; Martha Cover Co-Chair, Association of Lawyers for Children; David Graham National Director, The Care Leavers’ Association; Ann Haigh Chair, Nagalro; David Holmes CBE Chief executive, Family Action; Claire Hyde Assistant CEO, NYAS; Dr Mark Kerr Chair, Institute of Recovery from Childhood Trauma; Mary Moss Former chair, National Association of Young People in Care; Jacki Rothwell Chair, National Association of Independent Reviewing Officers; Dr Miriam Silver Consultant clinical psychologist, Faculty for Children, Young People and Their Families, British Psychological Society; Professor Brid Featherstone University of Huddersfield; Anna Gupta Senior lecturer in social work, Royal Holloway University of London; Professor Ray Jones Kingston University and St George’s, University of London; June Thoburn CBE Emeritus professor of social work, University of East Anglia; Jane Tunstill Emeritus professor of social work, Royal Holloway, London University; and Professor Sue White University of Birmingham
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