New legislation concerning children's social care rights was introduced into Parliament last week. Debate and scrutiny starts in the Lords on 14 June.
Many aspects of the Children and Social Work Bill, once enacted, will have a direct effect on children living in institutions, and care leavers. Below we summarise key elements, and highlight the opportunities and serious threats for children's social care rights.
Clause 15 empowers children's services to request 6-year breaks from Children Act 1989 duties, which is the greatest threat to children's rights in the Bill (see below).
Corporate parenting principles
This part of the Bill groups in one place existing duties towards looked after children and young people, and creates some new ones. It states:
A local authority in England must, in carrying out functions in relation [to looked after children and care leavers to age 25], have regard to the need—
(a) to act in the best interests, and promote the health and well-being, of those children and young people;
Section 22(3) of the Children Act 1989 already requires local authorities to safeguard and promote the welfare of any child they are looking after.
(b) to encourage those children and young people to express their views, wishes and feelings;
(c) to take into account the views, wishes and feelings of those children and young people;
Section 22(4) of the Children Act 1989 already requires local authorities to ascertain and give due consideration to the child's wishes and feelings. This is a stronger duty than these two principles in the 2016 Bill.
(d) to help those children and young people gain access to, and make the best use of, services provided by the local authority and its relevant partners;
Section 22(3)(b) of the Children Act 1989 already requires local authorities "to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case". In addition, care planning regulations require local authorities to assess children's "needs for services to achieve or maintain a reasonable standard of health or development", and they must prepare a care plan setting out how these needs will be met. Moreover, Regulation 5 of the Children's Homes (England) Regulations 2015 requires cross-agency co-operation to ensure children's needs are met.
(e) to promote high aspirations, and seek to secure the best outcomes, for those children and young people;
This is not currently in legislation.
(f) for those children and young people to be safe, and for stability in their home lives, relationships and education or work;
Section 22(3A) of the Children Act 1989 (as amended by the Children Act 2004) already requires local authorities to promote the educational achievement of children they are looking after; and the Children and Families Act 2014 imposes a duty on local authorities to appoint at least one person to ensure that duty is discharged.
(g) to prepare those children and young people for adulthood and independent living.
The Children Act 1989 (as amended by the Children (Leaving Care) Act 2000) already requires specific actions by local authorities, including providing practical assistance, when this is necessary, to safeguard and promote the welfare of a care leaver. However, the 2016 Bill extends the right to advice and assistance from 21 to 25 years. Emotional support is not mentioned specifically in existing legislation, or in this new Bill.
Other conspicuous omissions from the corporate parenting principles include: the importance of keeping siblings together and facilitating family contact, whenever possible; supporting children's friendships and social activities; and any mention of happiness, feeling loved and recovery from harm (see care plan provisions below). There is also no corresponding general duty on the Secretary of State, like there is in other policy areas, including education, health and public libraries for example.
Care leaver entitlements
This part of the Bill requires local authorities to publish information to care leavers about their services. Writing in the Sunday Times, David Cameron described this as a covenant, a promise that would set out young people's entitlements: the Bill uses the dry market terminology of a "local offer".
The duty to inform care leavers of services already exists within Paragraph 1, Schedule 2 of the Children Act 1989 (as amended by the Children (Leaving Care) Act 2000). What is new is that the range of services that may assist care leavers, and therefore should be promoted, are listed in the Bill as those relating to: (a) health and well-being; (b) education and training; (c) employment; (d) accommodation; and (e) participation in society. Additionally, local authorities must consult care leavers before publishing such information. Health and well-being could invite much needed attention on young people's emotional needs.
Advice and support for care leavers
This part of the Bill extends the duties of local authorities to assess the needs of care leavers, develop a pathway plan to meet these needs, and to provide advice and support up to the age of 25. This is a significant extension from the age of 21. However, the right to 'stay put' in a care placement is not extended to young people living in children's homes. The Children and Families Act 2014 entitled young people in foster care to stay in their placements until the age of 21. This does not apply to those living in children's homes, and the absence of any provision for this in the Bill is a fundamental flaw.
Promoting the educational achievement of children who were in care
This part of the Bill requires local authorities to provide advice and information to parents and schools in order to promote the educational achievement of children who were formerly looked after, including those who have been adopted.
Duties of Academies
The Bill introduces a duty on Academies to appoint a dedicated member of staff to promote the educational achievement of children in care, and those who were once in care including adopted children. A similar duty has applied to other maintained schools since 2008.
Permanence features of care plans
Parliament passed legislation in 2014 that required courts to consider the local authority's permanence plans for a child, during care plan proceedings. Now, the 2016 Bill sets out the required aspects of a permanence plan, including: the impact of any harm the child has suffered, or was likely to have suffered; the current and future needs of the child, including those arising from past harm; and the way in which the long-term plan for the child would meet these current and future needs. Missing from this list is the child's views, wishes and feelings.
Adoption and the child's relationships
Adoption legislation requires the court or adoption agency to consider the relationships children have, specifically mentioning legal relationships and relatives. The child's mother and father are the only two relationships specifically defined as relatives, through more are implicitly recognised. The 2016 Bill extends this definition to include as a relative a prospective adopter with whom the child is living. This is a curious proposal, which existing legal relatives who are not mentioned in legislation, such as grandparents, could find very insulting and upsetting.
Ministers could have provided duties to consider the child's relationship with prospective adopters without defining them as relatives. No provision has been made in this part of the Bill for due consideration to be given to children's views, wishes and feelings about the relationships they value and wish to preserve. (Adoption law requires the court or adoption agency to have regard to the child's ascertainable wishes and feelings about a decision relating to his or her adoption, though a specific duty in respect of relationships would strengthen this).
Child Safeguarding Practice Review Panel
This part of the Bill empowers central government to establish a national body to commission reviews into serious child safeguarding cases which are complex or raise issues of national importance. Ministers will appoint the Panel and central government will commission reviewers.
In June 2013, Michael Gove, as Education Secretary, established a national Serious Case Review Panel. None of its four members has previously worked in statutory child protection roles.
A serious child safeguarding case is defined as one where abuse or neglect is known or suspected by a local authority or another person working with children (voluntary organisations are not specifically mentioned) and the child has died or been seriously harmed. Serious harm includes "serious or long-term impairment of mental health or intellectual, emotional, social or behavioural development". Physical injuries are not included, which could exclude children in institutions who have been harmed by restraint, for example.
Serious case reviews, with equivalent remits, are presently the duty of Local Safeguarding Children Boards (LSCBs), statutory bodies created by the Children Act 2004. Before these, local authorities operated Area Child Protection Committees. The 2016 Bill does not indicate the types of child deaths that would be considered to raise complex issues or matters of national importance, inevitably raising questions about the future role of LSCBs.
Statutory safeguarding guidance has required since 2010 that serious case reviews be held whenever a child dies in custody. Article 39 believes the 2016 Bill should require an automatic safeguarding review of the death of a child in any institutional setting, including custody, hospital and children's homes, where there were concerns about the child's welfare before his or her death.
Power to remove children's social care rights for a period of up to six years
Clause 15 of the 2016 Bill is headed "Powers to test different ways of working", and empowers local authorities to apply to the Education Secretary to surrender or change their obligations to children and families under social care legislation. Where a local authority is subject to direct control, or any of its functions are being undertaken by a separate body, the local authority has no specified right to be consulted, or to object to such a move.
Agreements for the radical removal of children's social care rights will be made through the process of either negative or affirmative resolution in Parliament, and could last for up to six years. The negative resolution procedure allows legislation to be passed by Parliament without any debate or voting, unless objections are made. The affirmative process is slightly better, but still does not allow changes to be made to the regulations.
Local authorities must consult their LSCB prior to seeking these fundamental changes. There is no duty to consult local children, care leavers or families or bodies such as Children in Care Councils. The Education Secretary must, before agreeing to regulations, consult the Children's Commissioner and Ofsted.
The Bill's Explanatory Notes makes clear the enormity of these changes. Social care legislation is defined as:
"Children’s social care legislation includes all the enactments which govern how local authorities safeguard and promote the welfare of children and those leaving care, for example the Children Act 1989 (“the 1989 Act”) the Adoption and Children Act 2002 and the Children Act 2004."
Similar powers to suspend education law requirements were passed in 2002.
Other parts of the Bill relate to social worker regulation and mental health social work training courses.