Post-legislative scrutiny of the Children and Families Act 2014
Post-legislative scrutiny in the House of Lords
43.The first post-legislative scrutiny committee, on adoption law, was set up in session 2010–12. Subsequent committees have considered; mental capacity, extradition, equality and disability, the natural environment and rural communities, licensing and bribery. This work has been well-received on all sides of the House and is considered an important aspect of its committee scrutiny.
44.The Government has committed (in most cases) to producing a post-legislative scrutiny memorandum three to five years after an Act receives Royal Assent. The memorandum is intended to assess “how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the bill and in the supporting documentation”.39 It is submitted to the relevant departmental select committee in the Commons, which thus has first refusal on whether to conduct a fuller review.
45.In practice, therefore, this House has to select post-legislative scrutiny topics from either (a) those which are the subject of a memorandum but have not been picked up by the relevant Commons committee or (b) those which have not been the subject of a memorandum, either because the department has not yet drafted it or because the relevant Commons committee has agreed that one need not be produced. If a Lords committee is established to consider an area in respect of which a memorandum has not been published, the committee will request one from the relevant department. This was the procedure followed by the committee on the disabilities aspects of the Equality Act 2010 and that on the Bribery Act 2010. An updated memorandum may also be requested from the Government, for example for the inquiry on the Licensing Act 2003.
46.Within these parameters, past experience suggests that it is desirable to choose a subject where the law:
- is relatively stable, i.e. it has not been significantly amended within the last five years, so the committee has live experience on which to draw;
- is not the subject of obvious proposals for imminent reform; and
- is interesting but not obviously irreconcilably divisive.
47.In selecting legislation to recommend for post-legislative scrutiny in 2022 we were conscious that hitherto no legislation from the Department for Education or the Department for Business, Innovation and Skills (merged into the Department for Business, Energy and Industrial Strategy as of July 2016) had been subject to post-legislative scrutiny by a House of Lords committee. Scrutiny of legislation from the Ministry of Housing, Communities and Local Government has also been limited.
Children and Families Act 2014
48.The Children and Families Act 2014 is wide-ranging. It made several changes to the adoption system, most of which were designed to streamline the process, making it easier for adoptions to happen, whilst ensuring child safety and welfare (Part 1). Additionally, it made major reforms to children and young people’s special educational needs and disabilities (SEND) services (Part 3). The Act also introduced provisions relating to family justice (Part 2), childcare agencies (part 4), child welfare (Part 5), the remit of The Children’s Commissioner (Part 6) and working rights to leave and pay (Part 7, 8, 9).
49.There has been no post-legislative scrutiny memorandum published by the Department of Education for the Children and Families Act 2014, although the House of Commons Education Committee has undertaken scrutiny of Part 3 of the Act. In October 2019, the Committee published a report, Special educational needs and disabilities40 in which it found that the SEND reforms as introduced by the 2014 Act had been let down in “failures of implementation” and had resulted in “confusion and at times unlawful practice, bureaucratic nightmares and a lack of accountability, strained resources and adversarial experiences.” The government response was received on 22 July 2020.41
50.To date, there has been no scrutiny of Part 1 of the Children and Families Act 2014. Although it has been widely recognised in the children’s social services sector and by academics that the Children and Families Act 2014 has significantly increased the number of adoptions and the speed of the adoption process, consistent concerns have been raised regarding the added pressure to prioritise a placement even if there is uncertainty about its merits for the child.4243 In December 2019, the Government announced that an additional £45 million would be allocated to the Adoption Support Fund (established in 2015) to enable it to operate for another year.44 On 16 January 2020, Michelle Donelan MP, Parliamentary Under-Secretary of State for Children and Families, wrote to the Directors of Children’s Services stating that adoption was a priority for the government and requesting review of several key processes.45 The Government’s National adoption strategy was published in July 2021.46 The strategy refers to the issues identified with support following adoption and states that the government intends to “review the three-year rule in consultation with Regional Adoption Agencies (RAAs) and Voluntary Adoption Agencies (VAAs) to see if it is still fit for purpose.”47
Suggested scope for a potential inquiry
51.An inquiry might consider whether the child safety and welfare adoption safeguards in Part 1 of the Children and Families Act 2014 are functioning as intended. It might also consider how the reforms introduced under the Act are shaping decision making at the various stages of the adoption process and consider whether the Act enables best practice to be followed. Additionally, an inquiry might look at the effectiveness of the outsourcing provision within the Act.
52.The Committee recommend that a post-legislative scrutiny be appointed “to consider the Children and Families Act 2014”, to report by the end of November 2022.
39 Cabinet Office, Guide to Making Legislation (July 2015): https://www.gov.uk/government/publications/guide-to-making-legislation [accessed 5 November 2021]
40 Education Committee, Special educational needs and disabilities (First Report, Session 2019, HC 20)
41 Education Committee, Special educational needs and disabilities: Government Response to the Committee’s First Report of Session 2019 (First Special Report, Session 2019–21, HC 668)
42 Rachel Schraer, ‘Child placed with unsuitable adopter taken back into care after poor social work assessment’, Community Care (8 September 2015): https://www.communitycare.co.uk/2015/09/08/child-placed-unsuitable-adopter-taken-back-care-poor-social-work-assessment/ [accessed 5 November 2021]
43 Stanley Mason, ‘Why did it take a child’s death to reveal adoption system failings?’, The Guardian (23 August 2018): https://www.theguardian.com/society/2018/aug/23/social-workers-adoption-system-failings [accessed 5 November 2021]
44 Department for Education, ‘More funding to boost adoption support’ (22 December 2019): https://www.gov.uk/government/news/more-funding-to-boost-adoption-support [accessed 5 November 2021]
45 Letter from Michelle Donelan MP, Parliamentary Under-Secretary of State for Children and Families to Directors of Children’s Services (16 January 2020): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/859403/Adoption_letter_final.pdf [accessed 5 November 2021]
46 Department for Education, ‘Adoption strategy: achieving excellence everywhere’ (26 July 2021): https://www.gov.uk/government/publications/adoption-strategy-achieving-excellence-everywhere [accessed 5 November 2021]
47 Department for Education, ‘Adoption strategy: achieving excellence everywhere’ (26 July 2021) p 42: https://www.gov.uk/government/publications/adoption-strategy-achieving-excellence-everywhere [accessed 5 November 2021]