The Children and Social Work Act: essentials for community care lawyers

Last week, on 27 April, the Children and Social Work Act 2017 received Royal Assent. Community care lawyers are likely to know more about what is not in the Act rather than what is: the Bill had a rocky passage through Parliament, and key parts of the Bill were defeated or dropped along the way.  

What the Act does not cover: 

As multiple headlines have told us, two key themes in the original Bill do not appear in the final Act.  They are:

(a) Exemption clauses

First, the Government bowed to pressure and scrapped Chapter 3 of the Bill, which contained a series of 'exemption clauses' which would have allowed local authority children's services departments to opt out of their duties under almost every law covering children's social care for the past 80 years, since 1933.  The clauses were highly controversial, as we have reported on this blog in recent months (see, for example, Kate Beattie's piece in October 2016; my piece in November 2016; and Mary-Rachel McCabe's piece in March 2017).  Many readers were amongst the 100,000 plus signatories of a 38 Degrees petition started by the brilliant Carolyne Willow, a former child protection social worker, long-standing children's rights campaigner, and now Director of charity Article 39 (which was a founder member of the Article 39 was a founder member of the Together for Children campaign).  And many community care lawyers joined expert NGOs, both former Children's Commissioners for England, Professor Sir Al Aynsley Green (2005-2009) and Dr Maggie Atkinson (2009-2015) and others in signing a statement explaining opposition to the clauses.  Key to the campaign were the cross-party voices of Parliamentarians, including Shadow Children's Minister Emma Lewell-Buck MP and former Children's Minister Tim Loughton MP.

It is a testament to the determination, expertise and campaigning zeal of the Together for Children campaign (comprising 53 separate organisations, working together to oppose the exemption clauses) that the entirety of Chapter 3 was removed from the Bill.  The long-standing legal protections for some of the most vulnerable children and young people in the country remain intact.

(b) Government control of the new social work regulator

The Government also performed a U-turn on controversial plans for the new regulator for social workers to be Government-controlled.  As Community Care reported following the surprise change of policy, 

"The move marks a major concession from the government on one of the most controversial areas of its Children and Social Work Bill. Ministers previously said they had rejected the option of setting up an independent social work regulator after concluding it was better to “bring regulation closer to government”, due to the need to reform the profession and a desire to “effect change quickly”. The plan was also backed by the chief social workers for adults and children.

However fierce criticism from several sector bodies has prompted a rethink, with the British Association of Social Workers (BASW), the Association of Directors of Children’s Services and the Local Government Association among those who insisted that any new regulator must have independence from government."

What the Act does cover

We have read much about what has been scrapped from the Bill.  But what is left in the Act?  This has been largely - and understandably - overlooked given the headlines focused on the Government's defeats on key provisions in the Bill.

The Act is wide-ranging, covering issues concerning looked-after children; safeguarding; relationships, sex and PSHE education; and regulation of social workers. Coverage in the specialist community care press has tended to focus on changes to the social work profession, including in particular:

• The creation of a new organisation, Social Work England, to takeover from the HCPC as the profession’s regulator;
• A requirement for the new regulator to obtain the education secretary’s approval for professional standards;
• New powers for the education secretary to set ‘improvement standards’ for social workers, and introduce assessments for practitioners.

But for community care lawyers, my view is that five key provisions to watch are:

(a) Section 2: "local offer for care leavers". This requires local authorities to publish information about services offered to care leavers as a result of their functions under the Children Act 1989, and other services offered which may assist care leavers in, or in preparing for, adulthood and independent living. This provision is likely to prove useful, as a failure to publish a local offer will breach the Act; publication of the local offer may alert care leavers and their lawyers to their local options; and publication may alert campaigners and lawyers to potential challenges where there are gaps in provision. One common feature which we tend to see in cases concerning care leavers' entitlements is that certain local authorities operate their care leaving services in the shadows, and it requires persistent digging by solicitors and campaigners to uncover basic breaches of the Children Act 1989, such as, for example, personal advisors not being independent of the children's services department.

(b) Section 3: personal advisors up to age 25. Section 3 inserts a new s. 23CZB into the Children Act 1989, extending personal advisor provision to former relevant children up to the age of 25.

(c) Section 4: educational achievement of previously looked after children. This inserts a new s. 23ZZA into the Children Act 1989, requiring local authorities to make advice and information available to parents, schools and others regarding promotion of educational achievement of relevant children in their area.

(d) Sections 12 and 13: establishment of the Child Safeguarding Review Panel (CSRP). Section 12 inserts a new s. 16A into the Children Act 2004, requiring the Secretary of State to establish a CSRP. Section 13 inserts a new s. 16B, outlining the CSRP's functions. In essence, the idea is for it to address safeguarding issues at overarching, national level, whereas Local Safeguarding Children Boards focus only on issues at local level. The CSRP's functions are to "identify serious child safeguarding cases in England which raise issues that are complex or of national importance"  (s. 16B(1)(a)) and, where appropriate, to review such cases. The interaction between these provisions and the Children's Commissioner's powers in s. 3, Children Act 2004 will need to be considered.  Section 3 contains a power for the Children's Commissioner to hold an inquiry "where [s/he] considers that the case of an individualchild in England raises issues of public policy of relevance to other children" (s. 3(1)) but, importantly, "the Children’s Commissioner may only conduct an inquiry under this section if he is satisfied that the inquiry would not duplicate work that is the functionof another person (having consulted such persons as he considersappropriate)" (s. 3(2)). There is an obvious concern which will need to be teased out in the months to come: does the new CSRP regime undermine the s. 3 powers of the Children's Commissioner?

(e) Sections 23 and 24: Child death reviews. These provisions are also of critical importance to those who act in inquests and civil claims concerning child deaths. Section 23 inserts a new s. 16L into the Children Act 2004, and s. 24 a new s. 16M. They provide for "child death reviews" and "child death review partners."  I have concerns about this language - and I can predict the likely use of glib acronyms, 'CDRs' and 'CDRPs', in insensitive communication with bereaved families.  Anyone who has read Sara Ryan's recent, powerful blog about the appalling language on the Health Safety Investigation Branch Patient Safety Awareness Form, and the references to deaths as "incidents" and "problems" , is likely to share this concern. But the content of sections 23 and 24 seems welcome, if properly implemented: recognising the importance of analysis which identifies matters concerning a death, or deaths, "relevant to the welfare of children in the area or to public health and safety" ; requiring the partners to consider whether change is needed; and requiring review and follow-up on how effective the arrangements have been.  Used well, these provisions could in some cases be a useful supplement to Coroners' powers to prevent future deaths - although I hope "child death review partners" whose failures may have led to deaths of children do not use this system to argue against the use of Coroners' prevention of future death reports.

Implementation of the Act should be watched closely.