The Children and Social Work Bill was introduced and received its first reading in the House of Lords on 19 May 2016, following swiftly from the Queen’s speech and the government’s white paper ‘Adoption: A Vision for Change’.  It was made clear in the white paper that primary legislation was only one part of the government’s overall plan for reform and the legislation must be read against that background.  The Bill also contains, in Part 2, the legislative proposals for the future regulation of the social work profession.

It is worth noting that, following the devolution of powers to the Welsh Assembly, many of the provisions of the Bill are only applicable to England.  This may give rise to some interesting problems where children, made the subject of care orders in Wales, are subsequently placed in England and vice versa.

Corporate Parenting Principles

The general duties owed by local authorities to children being looked after by them are currently set out in s22 Children Act 1989 (as amended).  These include a duty to safeguard and promote the welfare of the child, make services available, promote the child’s educational achievements and ascertain the wishes and feelings of the child, his parents and various others.

Clause 1(1) of the Bill sets out a list of matters which a local authority must ‘have regard to’ when it is carrying out its functions.  It is unclear whether these are additional requirements or in substitution for s22. 

Clause 1(1)(a) requires a local authority in England to 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’.  Since the Bill only requires the best interests of the child to be a matter to which the local authority has regard to, logically (if somewhat worryingly), it would seem to permit an authority to conclude that there are other factors which, on balance, persuade it to act in a manner not, in the child’s best interests.  Moreover, since there is nothing in the Bill to suggest that s22 of the Children Act is to be repealed or amended, the provisions, certainly insofar as they apply to children under 18 years and looked after by the local authority, seem inconsistent and a recipe for confusion.

It is possible that the clue is to be found at clause 1(2) of the Bill, where the duties are to apply, not only to a looked after child within the meaning of s22(1) Children Act 1989, but also to care leavers aged under 25 years.  It would be understandable if a lower level of duty applied to care leavers however, if that is the intention, a better course would surely be to leave a coherent set of principles in the Children Act for looked after children, whilst having separate provisions for care leavers. 

In relation to looked after children the duties of the local authority are difficult to reconcile with the court’s duty under s1(1) of the Children Act.  It would be somewhat bizarre if the child’s welfare was of a higher importance when a decision was made in court than when the local authority has to decide the question.

The clause, it is submitted, would be significantly improved, by the deletion of the words ‘have regard to the need’ from clause 1(1) so that there was a much simpler and clearer duty;

• (a)  To act in the child’s best interests
• (b)  Encourage the child to express their wishes and feelings
• (c)  Take those wishes and feelings into account
• (d)  Help the children access and use services
• (e)  Promote aspiration
• (f)   To ensure the child’s safety and stability
• (g)  Prepare the child for adulthood and independence.

Since these are the things we would expect a child’s natural parent to do, why should it be any different for a corporate parent? Even with that it is hard to see how the provisions would substantially differ from s22 of the Children Act.

At subsection (4) there is a further duty to have regard to any guidance given by the Secretary of State ‘as to the performance of the duty under subsection (1).  Guidance can play a valuable part in legislation of this kind and has been very important in the operation of, for example, the Children Act.  What is of concern is that this guidance is coming from a government with an almost evangelical belief in the benefits of adoption which is not shared by most practitioners in the field, who would say that adoption is simply one option.  The only thing which matters is finding the right option for this individual child.  This undercurrent of leaving scope for subsequent unilateral ‘soft legislation’ by the Secretary of State is something which runs through much of the Bill.

Viewing the provisions from a purely practical lens, one has to ask, what we are to understand from this being in a separate sub-clause, rather than in with all the other factors in clause 1(1).   Does the guidance trump the other factors, or do we read the guidance subject to those overriding factors? The Bill, in its current form does not offer any help on this.

Services for Care Leavers

If anyone was hoping for changes to the, often, rather forlorn lot of care leavers, clauses 2 to 7 will come as a disappointment.  There is little in the way of new services and support, only a requirement to publicise currently available services (if any).  Clause 3 provides that a former looked after child between the ages of 21 and 25 can request a personal adviser and the authority must carry out an assessment of what existing services, advice and support may be appropriate.  No new services are proposed, only more information about the existing (already underfunded and overstretched) ones.

Care Orders

Section 15 of the Children and Families Act 2014 replaced the existing s31(3A) of the Children Act, which required the court to approve the care plan, with subsections (3A), (3B) and (3C).  Section 31(3A) of the amended Children Act provides that when deciding whether to make a care order the court is only required to consider (and approve) ‘the permanence provisions’ of the s31A care plan.  What constitutes the permanence provisions is set out in s31(3B).  Clause 8 of the Bill replaces the current form of subsection (3B) with an extended form which adds a requirement to also consider the provisions in the plan dealing with the impact on the child of any harm suffered, the current and future needs of the child and the way in which the plan would meet those needs. 

The provisions are unexceptional in themselves, although it may be argued that they are unnecessary.  Insofar as they reflect what any sensible court, local authority or guardian would be thinking about when looking at a potential placement, the provisions cannot sensibly be opposed.  Even though nothing is really achieved.

Why then, were they felt necessary, and do they achieve what the government had in mind? Here, regrettably, the draftsman of the Bill seems to have missed his mark by a country mile.  The provision’s origins lie in paragraph 3.14 of ‘Adoption: A Vision for Change’.  In that, the government said that it was going to amend the Children Act to ensure that when local authorities and courts were considering ‘the best permanent option for the child at the end of care proceedings’, account should be taken of whether the different placements were sufficient to meet the particular needs of that particular child.  This concern stemmed from the mistaken view that the making of a supervision order with a special guardianship order indicated that there was something inherently ‘risky’ about the placement.  The flaw in the drafting of clause 8, is that by addressing the issue through s31, these new provisions will only apply when the court is considering whether to make a care order and it will not be required to consider them if it is, instead, invited to make a child arrangements order or a special guardianship order.  This seems surprising, as it was precisely these orders that the government felt were not meeting the needs of the child who might be better off being adopted.

Adoption and Children Act 2002

There had been concern expressed at para 3.16 of the white paper that the ‘rights of prospective adopters’ were not explicitly dealt with in the welfare checklist in section 1 of the Act.  Hence, there was concern from the government that the relationship which a child had developed with potential adopters was not given statutory acknowledgement when, for example, there was an application for permission to defend an application for adoption.  This view of the existing law was always wrong. 

The framing of the initial proposals in terms of the ‘rights’ of the potential adopters is unhelpful, reducing the child to the status of a chattel to be competed for.  In relation to children, adults have responsibilities; it is the child who has rights.  Essentially, the right to demand that we, the adults, fulfil our responsibilities.

It is very difficult to see what the new provisions in clause 9 of the Bill add to what is already the law, applied every day in the Family Court, sitting the length and breadth of the country.

Section 1(4)(f) of the 2002 Act requires the court to take into account;

‘the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant’.  (emphasis added)

Such person may well be a potential adopter.  The issue was therefore already foreseen and adequately dealt with in the original legislation.  The amendment adds nothing to it.

Additionally, where a child has been with potential adopters for a significant period of time, the child will have acquired a family life with those potential adopters which the Human Rights Act compels public authorities to respect.  It can only be interfered with in accordance with the law and as is necessary in a democratic society for a legitimate purpose.

Even if the Human Rights Act were to be repealed, the welfare principle in section 1(2) of the Adoption and Children Act 2002 would compel the court to place great weight on the impact, on an already damaged child, of removing them from a home where they had begun to settle and attach.

The approach is clearly shown by the dicta of Thorpe LJ in Re W (A Child) [2010] EWCA Civ 1535 where the learned judge explains that ‘the judge must have great regard to the impact of the grant of permission on the child within the context of the adoptive family.’

Child Safeguarding Practice Review Panel

Clauses 11 to 14 of the Bill deal with the establishment and running of a new body, the Child Safeguarding Practice Review Panel.  It will be almost exclusively the creature of the Secretary of State.  The Secretary of State ‘may make any arrangements that he or she considers appropriate for the establishment of the Panel in accordance with this section’ (clause 11, inserting a new s16A into the Children Act 2004). 

The Chair and members of the Panel will be appointed by the Secretary of State and serve, to all intents and purposes, at his or her pleasure.  A proposed new section 16B of the 2004 Act sets out the functions of the Panel, which are to ‘identify serious child safeguarding cases in England which raise issues that are complex or of national importance’.  Where such cases are identified they will be reviewed under their supervision, although, it seems, not by them directly. 

The Panel will appoint a reviewer and oversee the preparation of a report which will be published ‘unless they consider it inappropriate to do so’.  Where the report is not published ‘they must publish any information relating to the lessons to be learned from the case that they consider it appropriate to publish.  There is a significant degree of hutzpah involved in an administration, which has persistently berated what they chose to describe as ‘secret courts’, establishing the Secretary of State’s personal and apparently, secretive, inquisition for such publically important issues.

Local authorities will be obliged to notify the Panel of all cases involving the death of or serious harm to a child who is either looked after or where the harm is suspected to have been caused by abuse or neglect.

Different Ways of Working

Clauses 15 to 19 of the Bill have the stated purpose in clause 15(1) of enabling ‘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.’

Reading on, we learn what these tests will comprise.  The Secretary of State is authorised to make regulations to either exempt a local authority from ‘a (meaning “any”) requirement imposed by children’s social care legislation’ or to modify the way in which a requirement applies to a particular local authority.  Where the provisions to be suspended are contained in secondary legislation this can be done by the negative resolution procedure where the Secretary of State makes a regulation, effective without any parliamentary scrutiny, unless there is subsequently a resolution in either House to annul it.  Where it is proposed that primary legislation be suspended the draft statutory instrument must be approved by both Houses of Parliament.

The maximum duration of such a suspension is stated to be 3 years, but in fact the Secretary of State can extend that period to a total of 6 years by further regulations.

Clause 19 of the Bill defines what legislation may be suspended.  At first glance, the list seems rather short.  This is deceptive.  The first item in the list is ‘any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18’.  Amongst the statutes to be found in the schedule (which has been regularly updated) are the Children Act 1989; Adoption and Children Act 2002; Mental Capacity Act 2005; Children and Young Persons Act 2008 and the Legal Aid and Sentencing of Offenders Act 2012, insofar as it relates to a child remanded into local authority accommodation.  In addition to these, the Secretary of State can draw up regulations to suspend the Children Act 2004 and, without needing parliamentary approval, any secondary legislation made under any of those statutes.

In my view, this is legislation of real constitutional significance.  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.

What is Missing

A provision which would have done more than any of the above to promote child welfare and safety would have been a very simple clause which stopped the 26 week clock running if the care plan had evolved into one for placement under a special guardianship order.  It is abundantly clear that social work practitioners across the country worry that these assessments are being carried out with indecent haste, simply to comply with the 26 week time limit in s32(1)(a)(ii) Children Act 1989 (as amended).  The assessment of special guardians for children emerging from care proceedings deserves to be as careful and thorough, as would be the case if the child were to be adopted.  The children themselves deserve this level of care.  The additional requirements imposed by the 2016 regulations simply require more to be done in the same amount of time and only encourage a superficial approach. 

Conclusions

Part 2 of the Bill deals with the proposed future regulation of social workers and would make social workers the only profession subject to direct regulation and control by the government of the day.  That is something which deserves a separate treatment.

Part 1 of the Bill is a deeply worrying piece of legislation.  It is of real concern for two principle reasons.  The first is the constant theme through the Bill of drawing powers to the Secretary of State.  That in itself, in a constitution which depends upon checks and balances, would be reason enough to urge detailed and critical scrutiny by the legislature.  Once the powers are given, our legislators may find them hard to take back and very difficult to control.

This fear is compounded when one realises that these enormously wide and sweeping powers are to be put into the hands of an administration which has an almost evangelical belief in the efficacy of one solution (adoption) over all others.  A simplistic and extreme belief which does not seem to be shared by any respectable body of academics or practitioners

The second issue is that the legislation appears to originate from an administration with apparently little or no real understanding of the current law relating to children.  As shown above many of the provisions are ineffective, meaningless or just plain inexplicable.  It is an appallingly badly drafted Bill.  Parliament can always decide to change the law.  That is what democracy is about.  It is however, surely not too much to ask that proposers of change should start from a clear understanding of what the current law actually says, so that we end up with something that is at least comprehensible and capable of being applied in practice.