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Children and Families Act 2014: A failure of implementation Contents

Summary of conclusions and recommendations

1.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. (Paragraph 34)

2.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. (Paragraph 35)

3.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. (Paragraph 36)

4.Early permanence placements, including fostering to adopt placements, can bring many benefits for the children involved, but require careful preparation and support for the prospective adopters. The Act’s requirement to consider fostering to adopt placements has had minimal impact, in part because it was not matched with the support necessary for adoption agencies and local authorities to implement the change. Inconsistent approaches by the courts in approving fostering to adopt placements have also hampered uptake. (Paragraph 55)

5.We welcome the Government’s commitment in the Adoption Strategy to increasing the number of early permanence placements where appropriate. The Government should publish an assessment of the impact of the funds spent on increasing early permanence placements, as well as publishing a longer-term strategy for promoting early permanence. (Paragraph 56)

6.It is not clear that the change of law, removing the requirement to consider ethnicity, has changed practice. Ethnic minority children still wait too long to be adopted; a disparity which is unacceptable. There remains a shortage of prospective adopters who are prepared to adopt children from minority ethnic groups and those who do are insufficiently supported. The adoption workforce, and adoption panels, are insufficiently diverse. Failure to undertake active recruitment and inadequate pay are serious contributors to a lack of diversity in adoption panels. (Paragraph 68)

7.To help drive whole system change at all levels, we recommend that the Government create a task force dedicated to addressing ethnic and racial disparities in the adoption system. Membership should include those with appropriate skills, expertise and experience, including regional and voluntary adoption agencies, community groups and those with experience of the adoption system. It should address issues of race and ethnicity in the adoption system. This should focus on issues including increasing diversity in the workforce and on adoption panels, support for transracial adopters, training for those working with minority ethnicity adopters and adoptees and recruiting and supporting minority ethnicity adopters. The task force should be outcome focused and directly accountable to the Secretary of State for Education, and should have specific, targeted and measurable outputs. (Paragraph 69)

8.The move away from the national matching register to commercial service providers has led to some improvement in usability for adopters. However, the loss of compulsory referrals and practitioner support for matching has undermined the ability of children to be seen by all those who may be able to provide them a permanent home. This is an unnecessary barrier to finding loving, secure homes for children, and one the Government failed to account for. (Paragraph 77)

9.The Government should re-instate the statutory register on its original terms, working with commercial service providers to build a more functional platform which combines the usability of existing services with the matching support and referral requirements of the statutory register. (Paragraph 77)

10.We are concerned by the lack of post-adoption support—particularly that which is targeted at early intervention, addressing problems before they threaten the stability of placements. The Adoption Support Fund is a welcome development, but its narrow parameters, short term funding and excessively complex and bureaucratic application process hamper its effectiveness. (Paragraph 84)

11.The Government should consider the expansion of the Adoption Support Fund, allowing it to be used for more than therapy and ensuring it is also focused on early intervention. We welcome the most recent multi-year settlement and encourage the Government to commit to continuing to guarantee sufficient and appropriate funding several years into the future. (Paragraph 84)

12.Contact, where safe, appropriate and properly managed, can be valuable for an adoptive child, their new family and their birth family, including siblings and other relatives. However, contact orders and support can vary, and the current system of letterbox contact is outdated. The failure to modernise contact threatens to undermine the adoption system. (Paragraph 93)

13.We urge the Government to support adoption agencies in developing and rolling-out a safe and appropriate national digital system for contact as a priority. This system should allow for faster and more intuitive contact, while ensuring contact remains moderated and safe for all. (Paragraph 93)

14.The lack of consideration given to kinship care when the Act was passed is a clear failure, made only more critical with the rise of Special Guardianship Orders in the intervening years. We are concerned by the lack of support provided to kinship carers, whose situations are often, if anything, more challenging than those of adopters. While the extension of the Adoption Support Fund to kinship carers with a Special Guardianship Order is welcome, take-up remains low. Support for kinship carers providing care outside of an SGO is discretionary and varies significantly between local authorities, leading to an unjust distribution of support. (Paragraph 101)

15.The Government should undertake a promotional campaign to increase take-up of the fund by those parenting under a Special Guardianship Order, beginning with renaming the fund to reflect that it is not limited to adopters. (Paragraph 101)

16.Owing to their relationship with the child’s birth parents, many kinship carers do not come to the attention of children’s services and the courts as potential carers until too late in the process, in an effort to avoid ‘competition’ with birth parents. This can lead to unnecessary delays and rushed assessments, which are not in the best interests of the child. (Paragraph 102)

17.We recommend that possible kinship carers should be identified and assessed alongside other options during pre-proceedings. This should be done in a manner which does not presume any particular outcome, with this made clear to all involved. (Paragraph 102)

18.The 26 week timeframe imposed by the Act has generally been positive. It has helped to bring cultural change, highlighting that it is essential that children—particularly the very youngest children—receive timely judgements. While flexibility may sometimes be needed in the most complex of cases, the average case duration has been allowed to become too long. Particular causes for concern include resource pressures on local authorities and Cafcass, pressures on judicial time, the use of expert witnesses and a lack of data about the functioning of the family justice system. (Paragraph 121)

19.The Act’s provisions on the use of expert witnesses have been welcome, and the intention to limit the unnecessary use of experts is a correct one. However, we are concerned that there may be variation in both the quality and frequency of expert witness usage across the courts. In cases where expert witnesses are necessary, the lack of ready availability of expert witnesses can pose further challenge to concluding cases in a timely manner. Improved data collection is needed to clarify the scale of the problem. (Paragraph 122)

20.There is no easy solution to the creeping delays in family law cases, but it is clear both that more resources—and more efficient use of resources—are needed. Improved data gathering and sharing are needed to identify and tackle delays as they emerge. We recognise that the Family Justice Board faces a difficult task in trying to give guidance to the various participants within the Family Justice System, but we are concerned that it may nonetheless not be fulfilling its role to the full extent that is possible. We consider that stable, high-level leadership of the Board is essential, and recommend the appointment of an independent Chair at a senior level, with a view to the Board being able to show greater leadership and share insights with Local Family Justice Boards and others. We welcome the Government’s commitment to making a significant dent in reducing delays by 2023 but call on them to quantify the reduction they are seeking, alongside specified timescales. We urge the Government to publish a target for the timeliness of public children cases, along with an associated action plan laying out how it aims to achieve this reduction and how it will measure progress. (Paragraph 123)

21.Improved data collection and data sharing are necessary to track the performance of the family justice system, identify regional inequalities and ensure consistent outcomes for children and their families. The current absence of sufficient data on court outcomes is an evident failure of the system, and without improved data the Government is at risk of making major policy changes which have far reaching impacts on the lives of children and families without a sound evidentiary basis. (Paragraph 128)

22.The Government should improve its collection and sharing of data on the family justice system. (Paragraph 128)

23.Mediation can help to divert cases from court, helping parties to reach settlement and limiting the burden on court time. However, in many cases mediation is not appropriate. Some couples have genuinely intractable disagreements which require court intervention to settle. The Government’s focus on mediation as a mechanism of reducing the court backlog, to the exclusion of all other forms of dispute resolution, is excessive and we have serious concern about any moves to make mediation functionally compulsory (Paragraph 139)

24.MIAMs have been ineffective and had low engagement rates. Their singular focus on mediation combined with no requirement for the respondent to attend and a perception of MIAMs as a form of relationship counselling have hampered their success. Many couples would instead benefit from a source of clear, impartial information on separation and, if necessary, general legal advice which can direct them to non-court or court-based resolution as appropriate. Some couples, having received this information, will still have reasons to continue towards the court to try to resolve disputes. Legal representation in these cases can help improve the efficiency of these cases, but the absence of legal aid in many private law cases has precluded this. (Paragraph 140)

25.We recommend that the Government produce and maintain a website which provides impartial advice for separating couples, helping them to understand the family justice system and what the courts can resolve, as well as what they cannot. We urge the Government to reconsider its proposals to make mediation effectively obligatory. Instead, we recommend that the MIAMs and mediation voucher schemes be replaced by a universal voucher scheme for a general advice appointment, at which point individuals can be signposted to alternative dispute resolution mechanisms, including mediation. We recommend that the Government urgently evaluate the impact of the removal of legal aid for most private family law cases, considering where reinstating legal aid could help improve the efficiency and quality of the family justice system. (Paragraph 141)

26.The voice of the child is not always heard and respected in the family justice system. The welfare of children should be the courts’ paramount consideration, and children themselves can be best placed to speak about which is in their best interest and should be involved in decisions about their futures. We have heard that children and young people don’t feel that their voices were heard properly heard in court proceedings, and that they felt that decisions might have been made more quickly and more in line with their wishes if they had been able to speak to the judge directly. We are concerned that Cafcass do not have the resources to devote to soliciting and following up on children views. (Paragraph 150)

27.We recommend that, in order to formalise the voice of the child in proceedings, initial hearings should address the issue of how the voice of the child will be heard during the case. We also recommend that the Family Justice Council reviews the guidance setting out the approach taken to judges meeting with children. In so far as there may be a basis for a change of approach, the Committee further recommends that the Family Justice Council and the Judicial College give thought to the training needs of judges in this area and the sharing of best practice. (Paragraph 151)

28.We have heard a range of views on the presumption of parental involvement and recognise that it is highly contentious. We take the view that in the majority of cases it is beneficial for both parents to be involved in a child’s life. However, every case is different. Each child’s welfare—including, to the appropriate extent, their wishes—must be paramount and judged according to their individual situation. Nothing should be allowed to undermine this. We are concerned by evidence that in at least some cases the rights of parents may be being put ahead of the rights and welfare of children. Nevertheless, there is a clear lack of adequate data on the effect of the presumption, both on court judgements and on how it sends a signal which affects how cases are settled out of court. We welcome the Government’s review of the presumption. (Paragraph 168)

29.The Government should carefully consider the findings of the review of the presumption of parental involvement and make any legislative or other changes necessary to ensure that children’s welfare is always put first. (Paragraph 169)

30.We endorse the Women and Equalities Select Committee’s proposal to replace shared parental leave with a right to 12 weeks’ paternity leave paid for four weeks at 90% of salary with no cap and for the remaining eight weeks at the statutory rate. Such a change would increase uptake, as it would be an independent ‘use it or lose it’ right and not require mothers to give up any of their leave. We recognise that this is an ambitious proposal, but it is the right ambition to have and one towards which we should move, beginning with the Government publishing an assessment of the costs and benefits of such a policy. As part of this assessment, it should consider particularly the impact of such a scheme on small organisations and enterprises. Moreover, to support smaller businesses, we recommend leaving in place the higher rate of 103% reclaim for employers who qualify for small employers’ relief (and 92% for other businesses). (Paragraph 195)

31.While self-employed mothers can make use of maternity allowance (subject to conditions), self-employed fathers and mothers’ partners receive no paternity allowance. They are treated unfairly in relation both to self-employed mothers and employed fathers/partners. (Paragraph 198)

32.At a minimum, we recommend that self-employed fathers/partners be given a right to shared paternity pay subject to the same conditions and at the same rate as directly employed fathers/partners. We further recommend that the Government’s long-term ambition should be for self-employed fathers/partners to receive 12 weeks’ paternity pay, paid at the same rate mothers receive maternity allowance. We acknowledge that individual circumstances may not allow this, but nevertheless believe this should be the Government’s ambition which would provide a level playing field for self-employed parents, empowering them to spend time bonding with their child. (Paragraph 198)

33.Although more than 150.000 children live in kinship care in England, kinship carers currently have no legal right to paid time off from work and often have to rely on the good will of their employers. As a consequence, carers can be forced to leave the labour market. (Paragraph 205)

34.We recommend that kinship carers with a Special Guardianship Order be provided with the same rights to leave as adopters when a child is placed in their care to ensure parity of support. (Paragraph 205)

35.Flexible working brings numerous benefits on an individual and societal level. However, employers and employees seem to disagree on how to implement the right to request flexible working arrangements. Many employers and campaigners would support making the right to request a one-day right, though some argued that instead jobs should be designed and advertised flexibly from the outset. (Paragraph 224)

36.In principle, we see no obstacles to make the right to request flexible working a day-one right. We would also recommend that businesses—while maintaining the statutory business reasons to refuse employees’ requests—be encouraged to advertise jobs flexibly whenever possible, with the Government leading by example. (Paragraph 224)

37.We are deeply concerned by the state of children and adolescents’ mental health services. They are in crisis. This is a grave threat both to the success of individual provisions of the Act and to its overarching aim of enhancing the lives of children and their families. The Government, in allowing services to deteriorate to this level, has shown it has not grasped the importance and severity of this problem. (Paragraph 241)

38.Early intervention saves money and saves lives. It results in better outcomes for children and young people and reduces the need for high-cost interventions later in the cycle for those already at crisis point. Despite the clear value of early intervention in many areas covered by the Act, it remained absent across many of the areas we looked at, threatening the stability of families and the health of children and young people. It is clear to us that the Government need fully to grasp this fact across many areas of the Act. (Paragraph 248)

39.Without proper mechanisms for data collection, sharing and analysis, the Government is flying blind and is unable to track the implementation and effectiveness of its policies. Improved use of data across public services is crucial to ensure good outcomes for service users, help identify problems as they arise, and seek value for money. (Paragraph 269)

40.Children need a strong voice at the highest level of government to advocate for their views and needs, providing advocacy which lasts beyond the cycle of a Ministerial appointment. The Children’s Commissioner is a powerful advocate with critical powers, and it is critical that the Government continues to heed them and to consider how best the voice of children is represented at the most senior levels of government. (Paragraph 279)

41.Throughout our inquiry, we have sought to hear directly from children, young people and their families. We were lucky to meet with children receiving mental health support and children with experience of the family justice system to hear their views on what could be improved. We are grateful for their time and insight, as they shared with us the challenges they face and how they feel let down by the very systems designed to support them. The failure of this Act was clearest to us in the conversations with the very children it was designed to support. As it looks to develop policies affecting children and young people in the future, their welfare should be the Government’s paramount concern and their views should be duly sought and respected. (Paragraph 280)

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