Article 39 has written to the Secretary of State for Education and government lawyers threatening a judicial review if a misleading document about local authority duties towards vulnerable children is not withdrawn.
The document, produced by the Department for Education’s children’s social care innovation programme, claims to expose myths in common understandings of council legal obligations towards vulnerable children. But Article 39, together with other children’s law experts, has identified numerous errors and misrepresentations of the statutory framework for children’s social care.
For example, councils are advised that they can reduce visits to children in long-term foster care to twice a year, yet the law states this is only permissible if the child gives their consent. This ensures young children, and other children unable to understand the implications of relaxing council monitoring of their care, continue to be visited regularly by social workers.
Most of the so-called myth-busting topics concern the protection given to children in care such as the frequency of visits from social workers, who is responsible for planning and supervising children’s care and the support given to foster carers. A series of questions are posed with advice from the Department for Education about the minimum actions they are allowed to take.
Freedom of information requests made by Article 39 have revealed that Ofsted disagreed with the innovation programme’s advice on council duties in respect of providing children and foster carers with their own social workers in the case of long-term placements (where a child has lived with the same family for at least a year).
Ofsted told the innovation programme that “The interpretation of all local authorities to date of the statutory guidance is to have two social workers – one supporting the child and the other the foster carers”, and that to reduce this to one would be “removing a significant safeguard for children in foster care”.
Despite this warning from the children’s social care regulator, the document was published with advice to councils that statutory guidance does not require them to give fostered children and foster carers different social workers.
An earlier draft of the document said it was agreed by Ofsted but this text was diluted to “in consultation with Ofsted” following the clash.
Elsewhere the document states that children who have run away should be offered an interview with someone independent after they return, yet existing statutory guidance is stronger than this because it says this safeguard must be offered.
Statutory guidance states that foster carers must receive at least one unannounced visit at home each year in addition to other visits and support from social workers. Clearly in conflict with this, the ‘myth busting’ document refers to just one visit a year as the minimum.
A joint letter was sent to the Children’s Minister Nadhim Zahawi MP last year, setting out the legal inaccuracies in the document. Fifty charities and social work experts urged the Minister to withdraw parts of the document that conflict with existing legislation and government guidance, because of the serious risks to children.
Labour’s Shadow Children’s Minister Emma Lewell-Buck MP also challenged the Minister in the House of Commons, accusing him of “cutting vulnerable children adrift”. A further request that the Minister withdraw the document or at least meet with concerned charities was rejected.
Carolyne Willow, Article 39’s Director, said:
“It is not good enough for the Minister to say there have been no changes to the law and statutory guidance while at the same time leaving in circulation a document which indicates otherwise. Council duties towards vulnerable children cannot exist and not exist at the same time.
“We are a small charity and taking legal action is inevitably risky financially but we cannot stand by and leave it to vulnerable children to have to go to court to defend the rights that Parliament and successive governments have given them.”
Copies of emails released by Ofsted show that the myth busting document originated from a meeting of the innovation programme, Ofsted and a small number of local authorities in 2017. That year the Department for Education sought to press through legislation which would have allowed individual councils to opt out of their social care duties towards children and families.
Over 108,000 members of the public signed an online petition opposing what came to be known as the exemption clauses in the Children and Social Work Bill. Peers voted them out of the legislation but a revised set of clauses were inserted when it returned to the House of Commons. These were removed from the Bill in their entirety after the then Education Secretary Justine Greening MP added her name to opposition amendments to delete them, in the face of widespread criticism that the plans undermined the rule of law and child protection.
Article 39 is represented by Oliver Studdert, Partner in Public Law at Simpson Millar, and Steve Broach, barrister at Monckton Chambers.