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Children and Families Act 2014: A failure of implementation Contents

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Chapter 1: Introduction

1.Since 2012 the House of Lords has appointed various select committees to undertake post-legislative scrutiny. Key questions for such committees include:

• whether an Act has fulfilled the aspirations behind it;
• how well it has been implemented by public bodies;
• whether it contains deficiencies or loopholes;
• whether any sections should be repealed;
• whether it needs to be updated to respond to new challenges relating to the policy areas it addresses.

2.On 19 January 2022 the House appointed this committee to consider the Children and Families Act 2014 and report by 30 November.

The Act

3.The Children and Families Bill was introduced by the 2010–2015 Coalition Government. It had its first reading on 4 February 2013 and received Royal Assent on 13 March 2014. Its aim was to improve services for vulnerable children and young people by reforming the systems for adoption, looked after children, family justice and special educational needs and disabilities. It also sought to increase support for families through reforms to the childcare sector, the Children’s Commissioner, shared parental leave and flexible working.

4.Pre-legislative scrutiny was conducted during 2012 in relation to the parts of the Bill dealing with adoption, special educational needs and disabilities, family justice and the role of the Children’s Commissioner.

5.Given the scope of the Bill, several departments were involved in drafting: the Department for Education (DfE), the Ministry of Justice (MoJ), the then Department for Business, Innovation and Skills (BIS), the Department for Work and Pensions (DWP) and the Department of Health and Social Care (DHSC). It was described at the time as a landmark Act.1

6.The Act applies primarily to England, but makes some changes to the systems in Wales, and minor changes to the Scottish and Northern Irish systems.

7.Part 1 of the Act relates to adoption. Its overarching purpose is “to speed up the adoption process and enable more children to be placed in stable, loving homes with less delay and disruption.”2 Specific provisions include: ‘fostering to adopt’ placements, where a child who may need to be adopted is fostered by approved adopters; the repeal of the requirement to consider ethnicity, religion, racial origin and cultural and linguistic background when seeking prospective adopters; the introduction of personal budgets for adoptive families; and giving potential adopters access to a national matching register.

8.Notable subsequent developments include: the closing down of the matching register in March 2019 and the publication of the Government’s independent review of children’s social care—led by Josh MacAlister—in May 2022.3 The Government has said it plans to publish an implementation strategy on children’s social care before the end of 2022.4 In July 2021 the Government published its National Adoption Strategy, outlining various challenges for the adoption system.5

9.Part 2 addresses the family justice system, making changes to both private and public family law. Private law governs disputes between private individuals, such as divorce and private children proceedings. Public law governs cases where the state has an interest in protecting a child at risk of significant harm or neglect. The Act’s provisions relating to public law include: introducing a maximum 26 week time limit for completing care and supervision proceedings when the courts are considering whether a child should be taken into care and restricting the use of expert witnesses. In private law, it introduced provisions such as making it a requirement to attend a family mediation, information and assessment meeting (MIAM); and requiring the court to presume that the involvement of both parents in the life of the child after parental separation is in the child’s best interests, unless it can be shown that it would be harmful.

10.The implementation of the Act coincided with reforms to Legal Aid made in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which removed most private law cases from the scope of legal aid and changed the financial means tests. It also coincided with cuts to public spending under the Coalition Government’s austerity programme. In 2020 and 2021, the COVID-19 pandemic and associated restrictions brought further challenges. There has also been concern about the effect of the presumption of parental involvement on children’s welfare and victims of domestic abuse. In June 2020 an independent report commissioned by the Ministry of Justice recommended that the presumption be urgently reviewed.6 The Government’s review is ongoing.7

11.Part 3 is focussed on support for children with special educational needs and disabilities (SEND), defined as having “a learning difficulty or disability which calls for special educational provision to be made.” Most notably, this part: requires education, health and social care agencies to work together and introduced Education, Health and Care Plans (EHCPs) for children and young people; places a duty on local authorities to identify children and young people who may have SEND and to publish information about the support available to them; and allows young people, parents or schools to request a needs assessment of a child or young person.

12.This is the only part of the Act which has received substantive post-legislative scrutiny. In its report in October 2019, the House of Commons Education Select Committee found that the SEND reforms introduced by the Act were positive but undermined by “failures of implementation.” The committee concluded that this had resulted in “confusion and at times unlawful practice, bureaucratic nightmares, buck-passing and a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many.”8

13.Part 3 also received scrutiny from the National Audit Office in 2019. It concluded that the Department did not fully assess the likely financial consequences of the 2014 reforms to the system for supporting pupils with SEND and that it was not, on current trends, financially sustainable.9

14.In September 2019 the Government announced a major review of support for children with SEND. A Green Paper was released in March 2022, with a consultation running until July.10 A response is expected by the end of the year.

15.Part 4 reforms childcare. It allows for the registration of childminder agencies on the childcare registers, and the registration of certain childcare providers with childminder agencies, as well as repealing local authorities’ duties to assess the sufficiency of childcare provision in their area and allowing maintained schools to create childcare provision without consulting the local authority, staff or parents.

16.Part 5 contains a range of provisions related to child welfare. These include: removing the restriction on local authorities issuing performance licences to children under the age of 14; making it a criminal offence to buy tobacco or cigarette papers on behalf of a person under the age of 18, or to smoke when in a car with them; requiring local authorities to assess whether young carers and parent carers within their area need support; allowing children to stay on with former foster parents until the age of 25 if the local authority determines it appropriate; requiring local authorities to appoint a ‘Virtual School Head’ to promote the educational achievement of looked after children; making changes to the regulation of children’s homes; and obliging state schools to provide free school meals to pupils in reception and years one and two.

17.Part 6 amends the remit and powers of the Children’s Commissioner, a role which has existed since 2004. The Commissioner’s primary function is to promote and protect the rights of children in England, including promoting awareness of the views and interests of children. They must have particular regard for the rights of children living away from home or receiving social care, and other at-risk groups. They must take reasonable steps to involve children in their work. The Commissioner may not investigate individual cases. However, they can provide advice and assistance directly to children living away from home or in care and make representations on behalf of those children to those providing them accommodation or other services. They can also enter premises to interview children or observe the standard of care provided.

18.Part 7 creates a new employment right to shared parental leave and statutory shared parental pay for eligible working parents. Parents can share up to 50 weeks of leave and 37 weeks of paid leave between them. Eligible adopters can use the new system for shared parental leave and pay.

19.Part 8 gives employees and qualifying agency workers the right to take unpaid time off work to attend up to two ante-natal appointments with a pregnant woman, if she is their wife, partner, daughter, or carrying their child.

20.Part 9 extends the right to request flexible working arrangements to all employees, providing they have been employed for at least six months. It removes the statutory procedures for processing the request, instead requiring employers to deal with the request in a reasonable manner. There are eight business reasons why such a request may be refused.

21.Between September and December 2021, the Government consulted on plans to make flexible working the default. It has not yet published a response.11

Post-legislative evaluation and scrutiny

22.We follow a series of post-legislative scrutiny committees which have been appointed since 2012. Previous committees have considered the Licensing Act 2003, the Bribery Act 2010 and the Electoral Administration and Registration Act 2013, among others.

23.We were the first committee to be tasked with scrutinising such an extensive and wide-ranging Act. Although a committee examined the Equality Act 2010, it was only asked to consider its impact on disabled people.

24.The breadth of our remit has had both advantages and disadvantages. Unfortunately, we have been unable to give some parts of the Act—including on childcare, special educational needs and disabilities, and children’s welfare—the attention we would have liked to. However, ranging across policy areas has allowed us to reflect on overarching themes.

25.The Government has committed to producing a post-legislative memorandum between three and five years after a given Act has received Royal Assent, unless it is felt to be unnecessary.12 This follows a recommendation by the Constitution Committee in 2004 that government departments should conduct post-legislative scrutiny of all significant primary legislation other than Finance Acts.13 These memoranda are supposed to include a preliminary assessment of how the Act has worked in practice. No memorandum had been produced for the Children and Families Act 2014 (with the exception of a memorandum on Part 3 for the Education Select Committee in 2019), until one was produced at our request and submitted to us on 10 March 2022, almost eight years to the day after the Act received Royal Assent.

26.Officials were unable to tell us why a memorandum had not been produced in a timely manner.14

27.While Parliament passes around 30 Acts each year, analysis by Dr Tom Caygill shows that post-legislative memoranda are produced only for a handful, as Figure 1 shows. There have been 11 post-legislative scrutiny committees in the House of Lords since 2012.

Figure 1: Number of post-legislative scrutiny memoranda produced

Source: Higher Education Policy Institute, ‘What does post-legislative scrutiny look like?’ (23 July 2022): https://www.hepi.ac.uk/2022/07/23/what-does-post-legislative-scrutiny-look-like/ [accessed 2 November 2022]

28.The memorandum we received was disappointing, betraying a lack of focus by the relevant departments on implementing and evaluating the Act.

29.At times, the Government did not explain its evidence for claims. In relation to section 15, it told us: “We think that this greater emphasis on the importance of permanence considerations has been seen as a positive step and has had a positive impact on decisions made by the family courts.” When subsequently asked why the Government thought this, the only evidence it was able to cite was guidance from the President of the Family Division which aligned with the requirement.15

30.Where data were provided, they were often partial. For example, evaluation of section 2 of the Act—which focusses on ‘fostering to adopt’—has been impeded by statistics only being available for ‘early permanence’ in general, without being disaggregated into its two types: fostering to adopt and concurrent planning.

31.Measures of success were sometimes highly simplistic. Most egregiously, the Government’s assessment of the success of the requirement to provide free school meals was simply to note that 88% of eligible children were eating them. It offered no assessment of whether the scheme represented value for money in relation to measures such as improving educational outcomes or children’s quality of life.

32.In some cases, departments appeared uninterested in making any attempt at evaluation whatsoever. For example, the Government told us that it is “impossible to accurately assess the impact of section 96”, which requires local authorities to identify young carers in their local area who may need support, because of a lack of reporting requirements on local authorities. Similarly, in relation to section 100—the duty on schools to make arrangements for supporting pupils with medical conditions—the Government’s one sentence assessment was: “The department does not monitor compliance with the duty and has not carried out any research on the impact of this duty.”

33.One potentially consequential provision in the Act—section 5, which would have required local authorities to provide personal budgets for adoptive families—was never commenced. The Government told us that this was due to negative feedback from adopters. We asked whether the department had consulted adopters on this issue before the Act became law. We were informed that there was “no record of any feedback being sought prior to the Act’s passage.”16

34.At the time of receiving Royal Assent, the Children and Families Act 2014 was described as a “landmark” piece of legislation. However, successive governments have failed adequately to monitor its implementation. In some instances, departments have made no meaningful effort to evaluate impact. This is unacceptable.

35.When an Act receives Royal Assent, the Government should publish a post-legislative scrutiny plan. This should include when a post-legislative memorandum will be published, if applicable, and details of the metrics which will be used to evaluate each section and what data will need to be collected to do so.

36.Our experience of this inquiry has convinced us of the real value of post-legislative scrutiny. The House of Lords, with its history of post-legislative scrutiny, is well placed to scrutinise Acts, but cannot singlehandedly scrutinise every Act passed. Once Parliament has passed a law, it owes it to those citizens affected to check how well the law is working. We are concerned by the disparity between the number of bills passed each year and the number of Acts scrutinised by the Government.

Our inquiry

37.As previously discussed, it would not have been possible for us to examine the whole Act in adequate detail. We focussed on the areas which we felt would be most likely to benefit from further scrutiny: principally parts 1, 2, 7 and 9, as well as touching on part 6 in taking oral evidence from the current and former Children’s Commissioners.

38.As part 3 of the Act on SEND both had already received post-legislative scrutiny and was the subject of a major consultation which would close halfway through our inquiry, we spent a more limited time on it than would otherwise have befitted its importance. We wanted to ensure the valuable evidence we received was communicated to policymakers when it could make the most difference, rather than miss an opportunity to make clear the changes needed to improve outcomes for children and young people with SEND. We drew on our written evidence and oral evidence from civil servants and leading experts, alongside a visit to a school and community centre in North London, to respond to the Government’s consultation. Our letter and the Government’s reply are appended to this report.17 A summary of our main points is contained in Box 1. We hope that our response helps to guide policymaking in this area—and that the Government takes seriously our warning that the SEND system is failing many children and young people as part of its ongoing review into the SEND system.

Box 1: A summary of our response to the SEND Green Paper

The SEND review has taken too long to come to fruition, and there is no clear timeline set for the next steps. We are concerned that the much-needed reforms to the system will continue to be drawn out indefinitely. The 2014 reforms were, fundamentally, the right ones, but little thought was given to their implementation. A clear implementation plan for the proposed next set of reforms is needed. The SEND review does not give enough concern to students who receive SEN support, but who don’t have an education and healthcare plan (EHCP). More consideration should be given to early intervention and better mainstream provision for those students who need SEN support without an EHCP. There is immense financial strain on the system. The current mechanisms of allocating funding are not fit for purpose and do not match pupil need. Any proposals to make the system more financially sustainable are welcome, provided they can be achieved without rationing support for pupils. Truly joined up working between education, health and social care remains unrealised. Health and social care are often absent from the picture, and families struggle against an overwhelming tide of bureaucracy in a system lacking coherence. More accountability for all elements of the system is needed. Balancing different views as to what is in the child’s best interest is difficult, particularly where there is disagreement between parents and schools. A rebalancing of how the differing views of parents and schools are reconciled, acknowledging the valuable insights of both parties. It is regrettable that the system has been allowed to deteriorate to this level. This review is an opportunity to make much needed changes. It should be open and engage with stakeholder throughout this reform process.

39.Our mandate is also to consider areas which were notably absent from the Act. Mental health emerged early on in our inquiry as a key theme which the 2014 Act didn’t address and which was indicative of a failure to support the wider needs of children and young people. Contributors to our inquiry stressed the poor mental health experienced by many children and young people, and their challenges in accessing care. This was particularly the case for those in social care or with special educational needs and disabilities. We drew on our written evidence and oral evidence from leading experts, alongside our visits and engagement events, including to a CAMHS clinic, to assess the failures in children and young people’s mental health services. This, along with other cross-cutting themes we identified, is covered in Chapter 5.

40.We heard from 44 witnesses in oral evidence sessions and received more than 150 written submissions. Some of these provided detailed accounts of sensitive personal experiences rather than commenting on the Act itself, with many correspondents requesting confidentiality. Rather than publish them as formal evidence, they are summarised in appendix 5.

41.We also wanted to hear directly from members of the public who might not otherwise take part in select committee inquiries. As well as our SEND visit, we spent a day at the court in Oxford and an afternoon at the Maudsley Hospital in Camberwell, held roundtable discussions with birth parents, adoptive parents in Yorkshire, young people with experience of the family justice system, and people working in mental health, and conducted an online survey.18

42.At the beginning of our inquiry, we asked the Government for the post-legislative memorandum on the Act. The Government has committed to produce such a memorandum between three and five years after a given Act has received Royal Assent, unless it is felt to be unnecessary.19 Almost eight years after the Children and Families Act 2014 received Royal Assent, no memorandum had been produced (with the exception of a memorandum on Part 3 for the Education Select Committee in 2019). The Government produced a memorandum at our request, setting out its assessment of the implementation of the Act. We discuss the inadequacy of the memorandum and the Government’s approach in our final chapter.

43.Chapter 2 focusses on adoption, chapter 3 on family justice, and Chapter 4 on parental leave and flexible working rights. Chapter 5 draws together themes which cut across our inquiry, including the lack of mental health support for children and young people, the need to respect the views of children in policymaking, the effectiveness of government, and the value of post-legislative scrutiny.

44.We are grateful to all those who contributed to our inquiry. In particular, we thank our specialist advisers for their invaluable support: on adoption, Julie Selwyn, Professor of Education and Adoption at the University of Oxford, and on family justice, Rob George, Professor of Law and Policy at University College London and barrister at Harcourt Chambers.

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