Children & Social Work Bill [Lords]

Written evidence submitted by Children England (CSWB 30)

Children and Social Work Bill

Children England is a small, independently-funded national charity created, governed and inspired by other charities. We were created in 1942 by a group of leading children’s charities, in the belief that the expertise, principles and voices of our sector were stronger together.

Children England has been conferring extensively with our members (and other sector bodies too) during the passage of the Bill to date, and their views and practice perspectives have been very informative to us in forming Children England’s own organisational position and evidence. However, this submission should not be taken as speaking on behalf of the rich diversity of our individual member organisations, many of whom have been briefing and submitting their evidence to parliament in their own right on their particular priorities and positions.

As a member of the Alliance for Children in Care and Care Leavers, Children England supports the Alliance’s calls for the Bill to go further in supporting the mental health of children in care and the provisions for young people leaving care.

We also strongly support proposals to give public authorities a duty to observe the United Nations Convention on the Rights of the Child and to extend the Corporate Parenting Principles to partner agencies such as Clinical Commissioning Groups, the police and the courts.

With other sector colleagues speaking and briefing ably on our behalf on those aspects of the Children and Social Work Bill, this submission will focus on our opposition to New Clauses 2 – 9.

Summary

Children England opposes New Clauses 2 – 9 in their entirety, on grounds of both principle and practicability:

· These clauses are badly drafted legislation and are a dangerous way to test new legislation

· If implemented, exemptions would create a fragmented landscape of children’s legal protections and social care practice in which it would be difficult for individual children to pursue their rights and entitlements

· The government has given no concrete evidence of the need for local authority exemptions and despite retention of the profit-ban there remain grounds for concern over marketisation

Bad legislation
1. These powers have been drafted and put before parliament too quickly and without any prior consultation with the public or the professionals who support children and families. They threaten the consistent nationwide application of other provisions in the very same Bill – for instance the Corporate Parenting Principles that have been welcomed by the sector and which many stakeholders are keen to help extend and reinforce. They are accompanied by very little detail as to why they are a necessary, proportionate response to a clearly stated problem; nor what specific ways of working local authorities are expecting or asking to ‘trial’ that would require using an exemption from primary law.

2. We are very concerned that the exemption clauses would represent an unprecedented constitutional challenge to the principle of universal application of primary legislation everywhere and at all times throughout the land, and an equally fundamental challenge to the primacy of parliament in democratically debating and deciding upon it At most, an exemption would require an affirmative resolution in parliament, which is almost never opposed: historically parliament has passed 9,999 of 10,000 resolutions since 1965.

3. The Bill offers no clarification of what should happen at the end of each three- or six-year trial of an exemption – no vision for how lessons will be learned and shared, and whether successful trials (however these are defined) will be systematically extended to other areas. The government has stated in its Power to test different ways of working: fact sheet that ‘…ultimately the goal is a single legislative framework that is truly based on what works.’ But there is no sunset clause, no stated timeframe or date by which all exemption trials will be concluded, and the ‘single legislative framework’ recreated as one consistent whole.

4. With up to six years of a child’s life affected by the suspension of council duties, it is to be questioned whether their treatment under an approved exemption should really be viewed or described as a ‘test’ at all – it may well be the defining law governing their entire experience in care and beyond. Similarly, in the course of six years (loner than a fixed term of parliament) it is likely that very few, if any, of the people in role as lead professionals, Ministers, Whitehall and council officials who assess and approve an exemption would remain in the same positions, be personally present or accountable for its outcomes six years later. These should be viewed as dangerously and counterproductively long periods over which to experiment with children’s lives, with the rule of law, and with professional practice.

Widespread opposition
5 Had the government consulted the public and professionals before drafting the Bill, they would have found opposition from almost every quarter. In addition to vocal concern from many children’s charities,

· 170,400 members of the public have signed the petition to protect children by removing the clauses

· 46 organisations have signed up to Together for Children, the campaign opposing the clauses, including many legal experts and social work professionals

· Social workers surveyed by Unison opposed the exemption clauses by a majority of more than two thirds

6. As exemplified by the creation and passing of the landmark Children Act 1989, there has been a longstanding British tradition that legislation and reform relating to children’s care and protection should be done in a cross-party way, seeking professional and political consensus support for reforms wherever possible. This tradition was followed in the long-consulted development and passage of the Children Act 2004, demonstrating that both main political parties have observed and led in this tradition.

7. One of the main practical reasons for adopting such an approach was an understanding of how important it is that matters concerning the state’s huge powers and responsibilities for intervening in families’ and children’s lives should carry widespread respect, ownership and understanding among all those who need to trust in them, and who work to implement them, without them being perceived or resisted as ‘politicised’ The strength of opposition among the sector of professionals who will be expected to work under exemptions should be a real cause for concern for its implementation, as should the level of public distrust expressed in campaign support.

Fragmentation of children’s law and social care practices
8. The exemption clauses will create a landscape in which the rights and protections a child can expect could vary significantly by postcode. Whilst it will be difficult for parliament to understand what is happening for children, it will be even more difficult for individual children themselves, who might be under the care of one local authority, be resident in a family or care setting in another local authority, and attend a school in yet another local authority. One vulnerable child could find themselves navigating three different sets of entitlements either sequentially or concurrently. While the government says a child will still be able to complain formally to the local authority, to the Department for Education or via judicial review, it’s extremely unclear what support would be still be available for them to do so, and how their advocates are to understand the effects of local variations on their legal rights and routes to complaint and redress.

9. The government has set out six key sections of children’s social care legislation that will be protected from potential exemption. These are indeed crucial elements of children’s law. But these duties are part of an interdependent network of legal provisions and case law that relies on the integrity of the overall framework to be effective in protecting children. Legislation that could still be suspended for six years includes:

· The entitlement to a regular Independent Reviewing Officer visit – sometimes the only impartial, completely child-focussed advocate a child in care has

· A looked after child’s entitlement to contact with their parents

· Many provisions safeguarding children in private children’s homes, including the duty on a children’s home to ascertain the child’s wishes and feelings, and to promote their welfare

· The child’s right to recourse to complaint to the Local Authority Ombudsman, and to independent advocacy in doing so

10. In protecting six selected sections of the Children Act 1989 and the Children Act 2004 the exemption clauses create a system in which some primary legislation may become viewed as more important than other primary legislation, undermining the respect in which the totality of the nation’s statute should be held. Under such a system, and with extreme pressure on councils to find cheaper ways of delivering children’s social care, one can imagine that this selection of 6 protected duties will create a ‘two-tier’ approach to priority needs, whether or not any exemption has even been applied for.

11. The government’s rationale for allowing exemptions is now focussed expressly on high-performing, high Ofsted-rated local authorities. This essentially casts the ability to apply for the ‘freedom’ to seek exemptions as a privilege or reward for high professional performance – and one that can also lever access to additional ‘Innovation’ funding that poorer performing authorities cannot get. Not only will a ‘two-tier’ approach to legal duties be at risk of emerging, but a nationwide two-tier system entirely – in which those authorities rated most poorly will have to continue to apply and comply with all the so-called ‘burdensome and restrictive’ regulations that better, wealthier councils can be freed from.

12. In Autumn 2016 the National Audit Office criticised the DfE’s approach to improvement and reform in child protection and care, calling for the department to

"Set out how it reconciles the variability introduced by local thresholds for help and protection with its goal of all children having equal access to high-quality services."

13. We believe that the combination of locally varied legal exemptions, two-tier primary legislation and the entrenching of ‘privileges’ for wealthy and/or high performing authorities, will have precisely the opposite effect to the urgent action recommended by the National Audit Office, reinforced by the findings of the Public Accounts Committee, to show leadership in reconciling local variations and their unequal impact for children.

Profit, outsourcing and fears of privatisation

14. Even with the existing regulatory profit ban (2014) remaining in place under the New Clauses, there are several ways in which the prospect of marketisation and profiteering from public investment in children’s protection remain a realistic concern within the government’s reform agenda:

a) Creating ‘not-for-profit’ subsidiaries of private shareholder companies to win and deliver contracts for delegated functions, that then channel ‘fees’ from their public income back to their profit-making parent companies;

b) The expressed intention to mirror the Academisation Programme for children’s services in light of growing evidence of financial mismanagement of public funds for private profit by some Academy Chains and Academy leaders, despite all Academies also being required by law to be ‘not-for-profit’;

c) The potential for new Children’s Trusts to whom child protection and care duties are delegated to then become ‘commissioning trusts’ (as described in the Laing Buisson report) who can then sub-contract some or all of the service delivery delegated to them.

15. In the explanatory notes to the profit ban regulation in 2014, the Department for Education made clear that "The regulation will not prevent an otherwise profit-making company from setting up a separate non-profitmaking subsidiary to enable then to undertake such functions". This, to some, is a simple statement of a general truth of company law, and the general ability of one company to form and own another legal entity. In practice, however, clarifying it in explanatory notes about the intention of the regulation undermines Ministerial claims to be absolutely opposed to any form of private company involvement in these reforms. Such means of ‘getting around’ a legislative profit ban using subsidiary company forms has been well-known and practised by a selection of Scottish not-for-profit care providers who are in fact fee-paying subsidiaries to their English private sector parent companies.

16. With an increasing number of Academies and Free Schools having to be investigated by the Education Funding Agency, many (such as high profile corruption at Perry Beeches and Quintin Kynaston), are evidencing a pattern of using subsidiary / family companies to divert public funds into private coffers. The delegated autonomy and budgetary control handed to Academies leaves room for unscrupulous people and trusts to still make private profit from them, through the school’s choices of corporate suppliers, and in the use of overpaid ‘consultancy’ positions and fees to channel public funds to private company and individual profit.

17. The Department’s plans for ‘Academisation’ of children’s services, by contrast, involves no acknowledgement or awareness of the risk of poor/corrupt financial management, nor the creation of any comparable body like the EFA to scrutinise financial probity in the spending of taxpayers’ money, and the upholding of the letter and spirit of the profit-ban.

Lack of justification
18. The Government says deregulation of children’s social care is necessary for local authorities with specific ideas for innovation that can’t be pursued under existing legislation. None of the examples offered so far justify removing primary legislation and children’s charity Article 39 has refuted many of them. Further, existing legislation already permits local authorities to innovate, as legal expert Allan Norman has argued, in the form of the Local Government Act 2000. In order to achieve economic, social or environmental well-being of ‘all or any persons resident or present’ in the area, a local authority may do ‘anything’ that isn’t already prohibited by law.

19. The government cites Eileen Munro’s review of child protection as evidence that good social work practice is being inhibited by legislation. In fact, while the review observes that ‘increasing prescription’ is hindering practice, its strongest recommendation on this subject is


"The State’s responsibility to protect children and young people means Government must continue to provide a clear legal framework, setting out what vulnerable children, young people and their families should expect from the collective efforts of local agencies. However, the review recommends stripping away much of the top-down bureaucracy that previous reforms have put in the way of frontline services."

20. This, and other individual calls for a reduction in ‘red tape’ that stifles innovation, seem to indicate a need for a change in regulation – not in statute.

21. Children England accepted and recognised the 2010 Munro critique of a legacy of ‘over-procedural’ reaction to failures that has created many regulation and inspection standards that are either written or interpreted as mechanistic, rather than human and relationship-focussed. We support calls for a wholesale review of all regulation and guidance supporting good social care for children, to ensure they allow for and support the responsiveness of social care professionals to both the unique and diverse children’s circumstances they encounter, and the professional judgements and relationships with children they must make and build. Wherever regulation, guidance and over-rigid inspection are truly interfering with professional efforts to make children’s rights a reality in their lives, we should work together to improve them, and improved regulation should be applied to all areas of the country simultaneously.

22. We therefore support calls to remove New Clauses 2 – 9 from the Bill altogether as it passes through parliament, and for the government to engage with the full breadth of expertise across the children’s sector in shaping a subsequent review of children’s social care regulation.

December 2016

 

Prepared 5th January 2017