A Bill was introduced into Parliament in May 2016 that could drastically change the legal basis of children’s social care. This is the Children and Social Work Bill, and it will be debated again in the House of Lords in October.
When Parliament passes laws that say councils have duties to help and protect children and young people in England, it does so for all children and young people that need this help and protection.
The Government wants to change this, by introducing a fast-track procedure to excuse individual councils from one or more legal duties for up to six years.
Under the Bill’s proposals, social care laws will no longer apply to all children. This is because legal duties could be exempted (removed) or changed for individual local authorities or for groups of local authorities.
The legal duties affected by the Bill are extensive and relate to all of the social care services children receive from local authorities, including child protection, family support, the care system and support to care leavers, and services for disabled children.
The ban on profit-making companies running child protection and other key services could also be lifted using the fast-track procedure.
Clause 29 of the Children and Social Work Bill states that exemptions or changes to legal duties can be made “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”. This implies Ministers want the aims of social care laws to be met, but without the laws.
Without social care laws, vulnerable children and young people will have to fall back on charity and goodwill, like before we had the welfare state.
When councils have statutory duties, it is ultimately for the courts to determine if the law has been complied with. Ministers have not said who will decide whether exemptions make life better for children, or even if anyone will be checking. In any case, we believe the courts should continue to be the backstop – just as they are for adults who use social care services.
When exemptions were introduced in education, at the end of 2002, there was a time-limit of four years, though this was later removed. The bigger change came through the Academies Act 2010, which allows all schools to opt-out of local councils. Just as ministers have indicated they hope all schools will be academies by 2022, they have stated their goal that more than one in three local authorities will be delivering (or planning to deliver) children’s social care services through trusts or other arrangements by 2020.
This Bill could be the start of massive reorganisation in children’s social care, in the absence of any evidence that children will benefit or public consultation.
DUTIES PROTECT SERVICES
Recent studies show that legal duties protect services for vulnerable children when funding is tight.
Research carried out for the Department for Education investigated why local councils are not spending more on helping families when they first have difficulties. The researchers found that councils had coped with substantial funding cuts by prioritising meeting their legal duties to vulnerable children and adults. Councils do not have a legal duty to provide early help to families, even though this was recommended by Professor Eileen Munro after she was asked by Ministers to review the country’s child protection system. In relation to children living in foster care, children’s homes and other care placements, the researchers noted, “participating councils reported that spending on looked after children was difficult to reduce as they had to meet statutory responsibilities” to these children.
Separate research for the Local Government Association found that councils are struggling to cope with reduced government funding, and the very specialised care that some children need together “with the need to maintain a core statutory service, leaves very little room for discretionary cost savings and efficiencies”.
If statutory duties are removed, local councils could be tempted or pressured into making cuts to services and support that days, weeks and months before were accepted as vital.
CHANGES TOO RISKY
The children and young people who rely on social care services are nearly always very vulnerable. They include:
- Children and young people who are looked after by councils
- Abused and neglected children and young people who live at home with backup from services
- Children and young people whose families are getting support to look after them
- Disabled children and young people
- Children and young people accused of committing a crime who are sent to custody before their case is heard
- Care leavers.
All of these children and young people need the law behind them. No matter where they live.
When schools used exemptions, they did so to extend free school meals, to provide milk to children or to make small changes to the school day. Social care services for children provide protection, care and support; they are tailored to each child’s needs; and they are often called upon in times of crisis and trauma. They are not like schools.
Government examples of how exemptions may be used in social care are extremely risky. They involve reducing or removing checks on children’s care and safety, and withdrawing services from individual children and families.
So what might social care exemptions be used for? The list below sets out the safeguards and services which have been publicly discussed to date:
- Relaxing the assessment process for children’s placements with family and friends
- Removal of independent reviewing officers from “low risk” children in care
- Disbanding adoption and fostering panels
- Removing looked after status from children remanded to custody
- Removing the duty to review a child’s care when he or she is in a stable placement
- Relaxation of children’s homes planning rules
- Removal of social workers from children in stable foster placements.
There has been no public consultation on social care exemptions, so we cannot be sure that all of the above are serious proposals or merely ‘thinking aloud’ ideas. What the list does show, however, is that exemptions are about taking away, not adding, safeguards and services.
Ministers say Parliament will have final say on whether exemption (or modification) orders are passed. But regulations are very rarely rejected by MPs and Peers: the Hansard Society reports only 0.01 per cent of statutory instruments have failed to get through Parliament since 1965. That’s a pass rate of 9,999 out of every 10,000!
TOO MANY LAWS AT RISK
The Government wants the new exemption powers to apply to every children’s social care law from 1933 to now. Even measures in the Bill to improve support for young adults who were once in care could be exempted. So too could the Bill’s corporate parenting principles, which set out how local councils should look after and treat children in their care, and care leavers.
There are so many legal duties that could be exempted, it is impossible to count them.
Children’s social care laws have evolved over many decades, often in response to failures in care and protection but also because of new knowledge and understanding. For example, in 2004 local councils were given a duty to promote the educational achievement of the children they look after. This arose from growing awareness of the educational disadvantages faced by children in care. It could be removed or altered if the exemption clauses pass.
CHANGES TOO QUICK
What’s the rush?
This fast-track procedure to excuse individual councils from one or more legal duties was not in the Conservative Party’s election manifesto. There has been no public consultation about it. When exemptions were introduced into education law, they were preceded by two public consultations.
During debates in the House of Lords, schools minister Lord Nash has given examples of how the exemptions may be used (see above). But he has not said which laws will be exempted, or explained why legal duties are getting in the way of children and young people receiving the help and protection they need.
When laws are believed to be faulty or no longer necessary, the normal process is for Ministers to consult professionals and the public before drafting legislation to change those laws. Then they can reach a confident and informed decision, based on experience across the whole country. The process is slower and more controlled than the one proposed in the Bill, but it values the expertise of those who use and deliver social care services. The exemptions procedure will be left largely to civil servants to operate, with Ministerial and Parliamentary approval.
The Government has not explained how exemptions will work when Parliament has passed laws in response to decisions made by the courts. For example, the duty to appoint an independent person to monitor how well local authorities are meeting their obligations to looked after children was introduced in 2002 because of great concern among family court judges. This culminated in a case which went to the House of Lords (this was before we had the Supreme Court).
The Government has not explained how exemptions will work when Parliament has passed laws in response to public inquiries. For example, in 2004 a new duty was placed on local councils to ascertain and give due consideration to children’s wishes and feelings when investigating their need for protection. Children’s charities pressed for this duty after the Victoria Climbié public inquiry. Eight-year-old Victoria was tortured and killed by her aunt and aunt’s partner. Even though professionals had concerns about Victoria before she died, she was never seen alone or asked her views. Going back even further, a public inquiry into the death of 12-year-old Dennis O’Neill in 1945 led to the introduction of six-monthly reviews of the care and progress of fostered children (this duty was later extended to children in other placements). Dennis was starved and beaten to death in foster care.
The Government has been silent on exemptions in education. In eight years, just 32 orders were made affecting 639 schools. One obvious explanation for the very poor take-up, is outlined in a Government report: “More often than not enquirers to the DfES Innovation Unit discover that they already have the freedom and flexibility to pursue their innovative ideas”.
If exemptions proved to be unnecessary in education, why should we believe claims they are necessary in children’s social care?
 Munro, E. (May 2011) The Munro review of child protection: final report. A child-centred system. Department for Education, page 12.
 Aldaba and the Early Intervention Foundation (July 2016) Children’s services: spending and delivery. Research report by Aldaba and the Early Intervention Foundation. Department for Education, page 36.
 Bryant, B., Parish, N. and Rea, S. (June 2016) Action research into improvement in local children’s services. The Local Government Association and ISOS Partnership, page 48.
 Lord Nash, House of Lords Second Reading of the Bill, 14 June 2016.
 Lord Nash, House of Lords Second Reading of the Bill, 14 June 2016 and Grand Committee debate, 11 July 2016. Isabelle Trowler, Chief Social Worker for Children and Families, 2 June 2016.
 Lord Nash, House of Lords Second Reading of the Bill, 14 June 2016 and Grand Committee debate, 11 July 2016.
 Lord Nash, Grand Committee debate, 11 July 2016.
 Lord Nash, Grand Committee debate, 11 July 2016.
 Report via Twitter from Association of Directors of Children’s Services national conference, 8 July 2016.
 Article by Andy Elvin, Chief Executive of Tact and member of Frontline Board, 18 July 2016.
 This duty was introduced by Section 52 of the Children Act 2004 and is in Section 22(3A) of the Children Act 1989.
 Re S (FC) (Appellant), In Re S and Others (First Appeal) (FC) In Re W and Others (Respondents) (Second Appeal) (Conjoined Appeals)  UKHL 10 (HL) [34-36]
 The Victoria Climbié Inquiry, CM 5730, January 2003.
 Report by Sir Walter Monckton on the circumstances which led to the boarding out of Dennis and Terence O’Neill at Bank Farm, Minsterley and the steps taken to supervise their welfare, May 1945.
 Department for Education (October 2005) Powers to facilitate innovation. Annual report for the academic year ending 31 July 2005.