Children & Social Work Bill [Lords]

WRITTEN EVIDENCE SUBMITTED BY NAGALRO (CSWB 45)

THE CHILDREN AND SOCIAL WORK BILL

POWER TO TEST DIFFERENT WAYS OF WORKING:

NEW CLAUSES 2-9

Nagalro is the professional association for Children’s Guardians, Family Court Advisors and Independent Social Workers. Its members represent the interests of children in the full range of both public and private family court proceedings and it is from the children’s perspective that we raise the following concerns.

SUMMARY

1. Whilst appreciating the need for innovative children’s services which explore new ways of working to achieve better outcomes, we are dismayed by the far reaching implications of New Clauses 2-9 of the Bill which could release local authorities from significant duties contained in the Children Act 1989 and related childcare legislation for a period of up to six years. We oppose these proposals for the following key reasons.

2. This is legislation of serious constitutional significance. It proposes removing or putting in abeyance key child-protection legislation, set in place to protect the rights and welfare of vulnerable children, in the pursuit of what can only be described as untried experimentation.

3. The Bill introduces a fast track process for suspending the rights of and safeguards for vulnerable children which, as Lord Warner pointed out at the Bill’s Second Reading in the House of Lords on 14 June, ‘have been built up over many years - indeed over many decades’. The majority of these provisions can trace their origin back to specific cases where children have suffered serious harm.

4. The fundamental flaw in New Clause 2 is that it allows highly vulnerable children to have different legal protections on the arbitrary basis of where they happen to live. The House of Lords considered that this would be unacceptable. The new proposals do nothing to address this flaw.

5. As children’s guardians, we are deeply concerned about the very real dangers for the vulnerable children concerned, particularly at a time of chronic pressure on all local authority resources. The unavoidable conflict of interest for local authorities seeking exemptions has not been addressed. There are considerable legal implications for the role of Children’s Guardians, who are required to provide an independent appraisal of local authority care plans, in cases in which the relevant child care legislative provisions have been put into abeyance. These problems do not appear to have been taken into consideration and the Association was disappointed not to have been consulted before the Bill was drafted. The welfare of individual children would still be the guardian’s and the court's paramount statutory consideration. Applying different rules for different children and criteria for local authority practice in different areas could potentially put Children’s Guardians in breach of their statutory duties and would provide fertile grounds for multiple appeals.

6. It is telling that 46 children's organizations - of which Nagalro is one- who have no conflict of interest and are viewing matters solely from the perspective of the child, are opposed to these provisions which have been unequivocally rejected by social work professionals, care leavers, university researchers and children’s charities as well as more than 107,6000 members of the public who have signed a 38 Degrees petition There was an informed debate in the House of Lords which resulted in the clause being deleted from the Bill for very good reasons. The Government has failed to convince us of the need to reinsert it. Moreover, it is, as Lord Watson pointed out in the House of Lords Debate on 8 November 2016, unnecessary to achieve the desired objectives.

SCOPE OF THE EXEMPTIONS

7. In effect the Government is asking us for a ‘blank cheque’ The Government’s controversial clause 29 of the Children and Social Work Bill was deleted in its entirety, by a significant majority in the House of Lords. The Children’s Minister, Edward Timpson, is proposing amendments which would reintroduce the provisions in what he describes, in a letter of 7 December 2016, as a ‘significantly amended’ form. What has changed from the original clauses and is it enough to make the provisions acceptable?

8. One of the problems with the original provisions of the Bill was that it had the capacity to suspend vast swathes of both primary and secondary legislation. The Government has not satisfactorily explained why it should want to have such far-reaching powers. Those who propose the reinsertion of these provisions into the Bill, must surely explain, in plain, practical terms, why they might wish to have the power to suspend each of the provisions (and many more). If the Government seeks to suspend, for example, the ‘staying put’ arrangements [1] , then they must explain why they seek the power to do this. If the response from the Government is that they would not wish to do such a thing, having only recently introduced this provision, then they must explain why they seek the power to do something which would be contrary to the best interests of the child. It is a position which seems to defy logic.

9. From what legislation could a local authority be exempted? The new clause has exactly the same starting point as the old clause 29, namely, that it covers ‘a requirement imposed by children’s social care legislation’. There follows the self-same definition of ‘children’s social care legislation’ that we found in the old version, namely: ‘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;’ together with ss23C -24 D of the Children Act 1989, the Children Act 2004 and any secondary regulations made under any of those Acts.

10. The first task therefore, has to be to look at what is actually in Schedule 1. Here is the list as it currently stands, insofar as it relates to children:

a. Children and Young Persons Act 1933 Parts III and IV

b. Children and Young Persons Act 1963 Part I

c. Children and Young Persons Act 1969

d. Adoption Act 1976 (transitional and saving provisions only)

e. Children Act 1989

f. Adoption (Intercountry Aspects) Act 1999 sections 1 and 2(4)

g. Adoption and Children Act 2002

h. Children Act 2004 sections 9A and 13 to 16

i. Children and Young Persons Act 2008 Part 1

j. Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 92 (functions in relation to a child remanded to local authority accommodation)

11. The schedule contains many other pieces of legislation which are, at least primarily, concerned with the care of adults. Although Schedule 1 has only a small number of sections from the Children Act 2004 included, the proposed provisions of the Bill would bring the whole of the 2004 Act within the scope of the potential exemptions. On top of these, any statutory instruments, made under these pieces of legislation are susceptible to suspension.

12. It was the sheer breadth of the potential exemptions which caused such consternation amongst many. Schedule 1 to the Local Authority Social Services Act 1970 also includes disability and mental health statutes. The overall impression is that the draftsman wanted to make his work as impenetrable as possible.

13. Having initially proposed the same wide-ranging possibilities for exemptions, the new clause excludes various provisions from its scope. They are:

a. Section 17 Children Act 1989 (Duty to provide services to children in need)

b. Schedule 2 (Part I) Children Act 1989

c. Section 20 Children Act 1989 (Provision of accommodation for children in need of it)

d. Section 22 Children Act 1989 (Duty to promote the welfare of looked after children)

e. Section 47 Children Act 1989 (Duty to make enquiries and take action to promote the welfare of children at risk)

f. Section 10 Children Act 2004 (Promoting co-operation to improve the wellbeing of children)

g. Section 11 Children Act 2004 (Making arrangements to ensure that regard is had to the need to safeguard and promote the welfare of children)

14. Those seven provisions are the ‘comfort blanket’ which is offered to those who oppose the legislation. Are they sufficient? The first test has to be to carry the proposal to its logical extreme. A ‘stress test’ if you will. What would the world of children’s social care look like if that was all that was left?

15. Those who promote the clause will say that this is an unfair test because there are safeguards in sub-clause 1 which require any suspension to be for the purpose of promoting the wellbeing of children and the regulations giving exemptions must be approved by Parliament and subject to consultation. All of this is true. However, since one of the objections to the initial clause was its breadth of application; the sense that everything was ‘up for grabs’, we would argue it is a legitimate test to perform. The retreat from the old clause 29 on this issue has, in truth, been a very small one, with the provisions protected, probably never seriously considered for exemption in the first place.

16. What remains on the ‘at risk’ list? It is a very long list list, but some examples, picked at random, might inform the debate.

a. Section 14F Children Act 1989 (special guardianship support services)

b. Special Guardianship Regulations 2005 (Supporting s14F above)

c. Sections 17ZA to 17ZC Children Act 1989 (young carers needs assessments)

d. The Young Carers (Needs Assessments) Regulations 2015

e. Section 21 Children Act 1989 (provision of accommodation for children in police protection or detention or on remand)

f. Sections 22A to 22G Children Act 1989 (local authority duties to provide accommodation and maintenance for looked after children). It should be noted that only the general duty to safeguard and promote the welfare of looked after children under section 22 is protected from suspension. The more detailed duties, inserted into the Children Act by the Children and Young Persons Act 2008, are not subject to any protection against suspension.

g. Section 23ZA Children Act 1989 (duty of local authority to visit looked after children and arrange for them to receive advice, support and assistance)

h. Section 23ZB Children Act 1989 (independent visitors for looked after children)

i. Section 23CZA Children Act 1989 (staying put arrangements)

j. Section 25 Children Act 1989 (restrictions on the use of secure accommodation)

k. Children (Secure Accommodation) Regulations 1991

l. Section 25A Children Act 1989 (appointment of independent reviewing officer)

m. Section 34 Children Act 1989 (local authority duties to allow contact with children in care). Despite the Secretary of State’s statement that the Bill is compatible with the Human Rights Act 1998, this sits uneasily with article 8 rights to family life.

n. The whole of Schedule 2 Part II Children Act 1989, which not only set out the duties of a local authority towards looked after children, but also forms the basis of a substantial body of regulations including provisions for the local authority to supervise and inspect foster carers and the accommodation which they offer. Part II includes paragraph 15 which imposes a duty on a local authority to promote contact between a looked after child and his family.

o. Section 49 Children Act 2004 (payments to foster carers)

p. Care Planning, Placement and Care Review (England) Regulations 2010. These regulations are of crucial importance to ensuring that children are placed safely and include, amongst much else, the regulations dealing with the placement of children in care with parents and the regulatory framework for IROs.

q. Fostering Services Regulations 2002

r. Section 4 Adoption and Children Act 2002 (assessment for adoption support services)

s. Adoption Support Services Regulations 2005

17. We would suggest that no list of safeguards about consultations, purposes and parliamentary approval can save this amendment from the fatal flaw which sits at its very heart; namely that it potentially authorizes steps which could not, under any conceivable circumstances, be in the interests of the child. Once it is accepted that there are provisions in the clause’s net which should never be suspended in this way, the whole provision becomes indefensible. It has every appearance of being budget driven rather than child-welfare driven. We fear that different ways of working might, more honestly, be described as cheaper ways. If that is the case and there is a need for such steps then the promoters of the legislation should have the courage to say so.

18. Two examples of possible areas for exemptions have been given by the Government - the suspension of the Independent Reviewing Officer’s role and the abolition of Adoption and Fostering panels. These would both result in less direct work with children. (See case examples in Appendix 1 attached). For example, IROs have a statutory resposibility to refer cases of breach of an individual child‘s human rights to Cafcass Legal, who may then represent the child in the subsequent proceedings taken under the Human Rights Act 1998. At a time when Cafcass is also under increasing pressure, the net result of the exemptions would be that the voice of the child is effectively silenced.

RISK AND INFORMED CONSENT

19. The heading of the proposed new clause is significant, saying that it is the ‘power to test different ways of working’. Any test carries with it risks that it may not produce the desired outcome. If that were not the case, the test would not be needed. These tests however, will be carried out on real people; real parents and real children. If we were dealing with a trial of a new drug, this would be hedged about with provisions to ensure that only those who wished to be involved were subjected to the test and that their consent was fully informed, both as to benefits and risks. Local authorities ‘must consider’ but are not ‘required’ to consult children who might be affected by the legal exemptions. How is the seven-year-old child to give a valid consent to the risks of a test? If a local authority obtains an exemption then all the children in its jurisdiction will be the subjects, whether they agree or not. They will have no individual say in the matter.

20. Our path to the current system for child protection is littered with casualties. Most of the provisions which we now have, are there because children were neglected, injured or died. The state’s track record as a parent is far from unimpeachable. If a test turns out to be misconceived and children are in fact harmed, who will offer them redress? Let us suppose that a child’s IRO is withdrawn and as a result of this the child ‘stagnates’ in an unsuitable placement. That child will, perhaps, have to suffer the consequences of these omissions for the rest of her life.

21. The throw away proposal on the final page of the Ministers briefing [2] that in the final analysis the child could resort to Judicial Review or a claim for damages is both deeply cynical and sloppy. Has this been agreed with the Ministry of Justice and the requisite additional funding been agreed with the Legal Aid Agency? What would be the pathway and who would be in position to apply on behalf of the child? In the case of a competent child; who would inform them of their right to claim damages? When this was raised with representatives of DfE their answer was ‘it never happens!’ The drafters appear to have given no thought to victims. In order to be human rights compliant, pathways to redress must be clearly signposted and accessible to all children who may need them. This is woefully far from the case.

22. Pre-Children Act enquiries into the abuse of children in residential care demonstrated the dangers of unregulated 'experiments' .The abusive Staffordshire ‘Pindown’ [3] regime of the late 1980s was introduced as an’innovative‘ programme for controlling children in care which was claimed to be necessary in the children’s best interests. Before the implementation of the CA 1989, there was an extraordinary lack of coherence and coordination in safeguards for children across different local authorities [4] . Pre Children Act experience demonstrated that localised definitions of best interests, may themselves constitute an abuse of children rights, if applied within an essentially subjective and fragmented scenario. Our statutory and regulatory system has been carefully constructed to provide a robust, unified framework of rights which regulate and inform pratitioners decision making and protect the welfare of children in whatever setting. The exemption clauses would constitute a seriously regressive and dangerous step.

CONFLICTS OF INTEREST

23. The clause completely ignores the inherent conflicts of interest faced by local authorities asking for exemptions under the proposed clauses. In a period of austerity and budget cuts more than ever, local authorities must try to live within massively reduced budgets and ensure the on-going favour and support of the Secretary of State. Anything which helps spread the budget further is going to be greeted with great enthusiasm in County Hall, but risks introducing perverse incentives into a system already under great strain.

see Appendix following

APPENDIX 1. NAGALRO CASE EXAMPLES.

The examples of possible exemptions given by Lord Nash during the passage of the Bill through the House of Lords (Suspension of the Independent Reviewing Officer (IRO) role and removal of the Independent Adoption and Fostering panel) would both have resulted in a lack of any independent appraisal of the actions of the local authority in loco parentis. There would be a reduced contact and focus on the child and there would be no one outside the local authority to blow the whistle or challenge their view of the child's best interests. They are the fail safes in the system.

The following anonymized case examples from Nagalro illustrate the pivotal role played by IROs and show how things can go badly wrong for the child when key safeguarding functions are not carried out.

1. A 4 year old girl who has been in voluntary care since birth. Her mother is an alcoholic who has not maintained contact with her child. The IRO raised concerns about the lack of long term planning for the child and her slow development. The local authority social services department then started making plans for Adoption and commenced care proceedings but still failed to address the little girl's developmental problems. A Children's Guardian was appointed in the care proceedings and the IRO raised her concerns with her and a pediatric assessment was ordered by the court in spite of the LA objecting on the basis that it was too early for developmental tests. The pediatric assessment showed that the little girl's problems were caused by foetal alcohol syndrome - a direct result of her mother's drinking during pregnancy. This had not been picked up by the local authority.

2. An eight year old boy in long term foster care. In this case the IRO raised significant concerns about the suitability of an established Foster carer to continue to foster after a foster child told him that he was having to provide meals for himself and was being left in sole charge of a younger foster child. He was also upset that he hadn't been given allocated grant money to buy a bicycle and he felt neglected now that his foster mother had a new boyfriend who was regularly staying overnight. This turned out to be the foster mothers ex-partner who had just been released from prison where he had served an 18 month sentence for arson. Neighbours subsequently contacted the police with reports of excessive drinking and regular visitors who were allegedly involved in crime and drug dealing. On one occasion there was a drive by shooting at the house and the foster mother was eventually deregistered at the instigation of the IRO who had raised the alarm.

3. A five year old girl of mixed heritage. Independent Fostering and Adoption Panels can play an important role in questioning local authority care planning and opening up new possibilities for the child. In one example, the local authority social worker presented the case of a 5 year mixed heritage child to the Adoption Panel. Mother was unable to address her drug use problems and had no family to look after the child. The father was serving a long prison sentence and Adoption appeared to be the only option. The Panel Chair was not satisfied and asked the Social Worker to go back and explore the paternal family. An investigation revealed an extensive extended family and a paternal grandmother who was willing and able to look after her granddaughter with wider family support. Because of the Adoption Panels intervention the outcome for this child changed completely and she was able to remain with her birth family.

4. A 10 year old boy in long term foster care. One of the most common complaints from looked after children are that they are being moved from a settled foster placement against their will. The driving force for this is very often budgetary constraints as in this example, in which a child fostered through a more expensive Independent Fostering Agency, was suddenly told she was to be moved because a cheaper fostering placement had become available within the local authority. The child had been in the placement for four years. The IRO saw him as part of a regular independent review and supported him in opposing the planned move on the grounds that he was not being moved in her own best interests, but purely in the best interests of the local authority auditors. The IRO used the dispute resolution procedure to stand her ground and the child was able to stay where he was after the local authority and the Independent Fostering Agency came to a financial agreement.

5. Three siblings in long term foster care aged 10.12 and 14. Here is an example of how the lack of an IRO to attend a looked after child's care plan review meeting could impact negatively on their welfare. Briefly, the fostering team and the children's social workers disagreed about whether the children should be left with their current foster carers. They had been there for eight years and were very happy and settled. However there had been some vague allegations about the foster parents made by neighbours. The social workers were told by their managers to go to see the children to tell them that they were going to be moved, even though the social workers themselves didn't agree with the decision and the children had made it clear to them that they were very anxious to stay and indeed very fearful of what a move would mean. Sibling groups risk separation because there are very few placements for three children together. The IRO went to see the children to ascertain their views as a normal part of the routine Review process. He supported the children in writing to the Children's Commissioner who intervened. The instruction to remove the children was put on hold pending a full fostering review assessment by an Independent Social Worker. The outcome was that all three children remained in the placement. Without the intervention of the IRO, the three children would have been moved after eight years of security. The children's social workers felt it was not in the best interests of the children to be moved, but had felt powerless in the face of the senior manager’s instructions.

January 2017


[1] Section 23 CZA Children Act 1989 allows fostered children in stay in their placements until the age of 21.

[1]

[2] The briefing accompanied the ‘Power to test different ways of working’-fact sheet issued by the Children’s Minister Edward Timpson MP 7 December 2016

[3] ‘The Pindown Experience and the Protection of Children’. The Report of the Staffordshire Child Care Enquiry 1990 published by Staffordshire County Council (1991). The whistle was finally blown by a girl who jumped from an upper floor window,bare foot and in her night clothes, and went in search of help. None of the staff had questioned what was happening as they were told the regime was ‘in the children’s best interests’ and would improve outcomes.

[4] See ‘One Scandal Too Many: The Case for Comprehensive Protection for Children in all Settings. Peter Newell for the Gulbenkian Foundation (1993).

[4]

 

Prepared 5th January 2017