Government names first three safeguards to be “exempt”

The Children and Social Work Bill had its Second Reading in the House of Lords last night.

Fifteen Peers expressed concerns about Clause 15 of the Bill, which introduces a fast-track process for removing rights and safeguards which Lord Warner explained “have built up over many years—indeed, over many decades”.

During his closing of the debate, Schools Minister Lord Nash cited three safeguards that could be lifted through the Clause 15 fast-track process:

1) Relaxing the assessment process for children’s placements with family and friends;
2) Removal of independent reviewing officers for “low risk” children in care; and
3) Disbanding adoption and fostering panels.

The Bill allows hundreds more rights and safeguards to be removed.

Below we publish what the Minister said, with our brief, initial response in blue:

“It may be helpful if I touch on a few examples of where this power to innovate might be applied and where local authorities might apply for exemptions. The first concerns family and friends carers. It is recognised that a carer who is either a family member or a friend is typically the best option for a child, but too often it is hard to get such a carer approved to the same standard as a professional foster carer, particularly within the 16-week time limit. Exemption could allow local authorities to trial making placements for children that put the child at the centre of the decision, prioritising their needs and their attachment to family and friends, without unduly sacrificing the safeguards in place for the child.

OUR RESPONSE: there is no statutory duty to assess placements with family and friends, unless the local authority has child protection concerns or the child is looked after (that is, subject to a care order or accommodated under s20 of the Children Act 1989). When a child is looked after, family and friends must be approved as foster carers prior to the child’s placement there. However, regulations permit local authorities to temporarily approve foster carers, prior to a fostering assessment, for up to 16 weeks. So it would appear the Minister is announcing the Government’s intention to empower local authorities to place looked after children with family and friends without the fostering approval process. This would remove the entitlement of families to a weekly fostering allowance. Statutory guidance from the Department for Education states:

“Whether family members and friends are caring for a child or young person who would otherwise be looked after, who is already looked after, or is returning from a care placement, it is essential that proper recognition and effective support are given to ensure that the carers are able to safeguard the child and promote his or her welfare, and so achieve their full potential.” (paragraph 2.17, our emphasis in bold)

Secondly, there is strong consensus in the sector that in low-risk cases the role of the independent reviewing officer brings no additional benefit. Exemptions will allow local authorities to trial redirecting IRO resource differently—for example, to more complex cases—while reducing the number of additional people a young person does not know at their review, which is a known concern, in more straightforward cases.

OUR RESPONSE: without detailed plans from the Government, it is impossible to identify which looked after children Ministers (or local authorities) might consider to be “low risk”; to understand what the term “low risk” actually means; to determine who will make the decision that a child does not need the protection of an independent reviewing officer (IRO); or how such an assessment might be reversed at a later date. Do Ministers, for example, consider that local authorities would immediately reappoint an IRO to a child in circumstances where they consider they are not properly discharging their statutory duties? Alternatively, once a child has lost their right to an IRO, would this be for the rest of their time in the care of the local authority?

The evolution of the statutory role of IRO began with two legal cases concerning four children in care in Bedfordshire and Torbay.  The Court of Appeal introduced starred care orders, where a child’s case would be supervised by the court in order to check (and ensure) the local authority was fulfilling the child’s care plan. This was removed by the House of Lords, though there was considerable sympathy with the lower court’s reasoning. Giving the leading judgment, Lords Nicholls explained:

“The judgments in the Court of Appeal are a clear and forceful statement of the continuing existence of serious problems in this field. In the nature of things, courts are likely to see more of the cases which go wrong. But the view, widespread among family judges, is that all too often local authorities’ discharge of their parental responsibilities falls short of an acceptable standard…

It is entirely understandable that the Court of Appeal should seek some means to alleviate these problems: some means by which the courts may assist children where care orders have been made but subsequently, for whatever reason, care plans have not been implemented as envisaged and, as a result, the welfare of the children is being prejudiced. This is entirely understandable. The courts, notably through their wardship jurisdiction, have long discharged an invaluable role in safeguarding the interests of children. But the question before the House is much more confined. The question is whether the courts have power to introduce into the working of the Children Act a range of rights and liabilities not sanctioned by Parliament.

“On this I have to say at once, respectfully but emphatically, that I part company with the Court of Appeal. I am unable to agree that the court’s introduction of a ‘starring system’ can be justified…” (paragraphs 34-36)

The same year as the House of Lords issued its judgment, Parliament passed legislation, in 2002, putting IROs on a statutory footing (some local authorities had already established the roles).

Thirdly, there is criticism that adoption and fostering panels which are only advisory add little value and can often delay the process of approving prospective carers. Exemption could allow local authorities to trial removing a potentially invasive and unnecessary requirement from one of the many layers of checking, leaving the agency decision-maker who currently makes the decision to exercise their professional judgment.”

OUR RESPONSE: statutory guidance on adoption (2013) states these panels, “play an important quality assurance role, providing objectivity and having the ability to challenge practice which is felt not to be in the interests of children” (paragraph 1.19). In 2012, the Government consulted on reducing the membership of adoption and fostering panels, claiming too many members caused delay. This proposal was overwhelmingly rejected:

  • Most respondents rejected reducing the size of the panels (the Government did not publish the % of those opposing)
  • 79% “thought that a quorum of three members was too small to provide the rigour required to conduct the important job of deciding on the future care of a child, particularly in difficult or complex cases”
  • 70% “said that reducing the size of the panel would result in the loss of experience, expertise and perspective, when it was believed that a wide spectrum of views resulted in more balanced judgements”

The Government therefore concluded, in 2013: “We will not introduce a maximum number of adoption or fostering panel members or restrict the number of non-panel members attending an adoption or fostering panel meeting. We will keep this under review.”

Yesterday’s announcement of the removal of the panels altogether goes way beyond the 2012 proposals, which were strongly rejected. The majority of respondents to that consultation were directly involved in adoption and fostering services.

The Minister also said the Government has “no intention” of removing the ban on profit-making companies taking over child protection services. However, he did not explain why Part I of the Children and Young Persons Act 2008 (dealing with outsourcing) has been included in the long list of legislation that could be exempted. The ban on profit is included in regulations only, so would be subject to negative affirmative resolution procedure. As Parliament’s own website states, “A statutory instrument under the negative procedure will automatically become law without debate unless there is an objection from either House”.

Article 39 will continue to fight for children’s rights by vigorously opposing these proposals.

You can read the debate here.