Ahead of the care review’s online event around the theme of ‘freedom vs responsibility’, below we share 10 examples where we have used the law and statutory guidance this year to protect the rights of children in care and young adults who were formerly in care.
We could have included many more examples, but have kept this brief to make our message clear – that the law is critically important to children and young people.
The care review’s interim report, The Case for Change, stated:
What is needed is a coherent regulatory landscape and rulebook which is grounded in the needs – and indeed rights – of children and families, and combines greater levels of both freedom and responsibility for professionals in children’s social care.
The government has been attempting to deregulate children’s social care since 2011. Like the care review, it has pressed for greater professional freedom and set up a conflict between the statutory framework for children’s social care, and social workers and others being able to do their jobs well. The government has also presented deregulation (the removal or weakening/dilution of law) as innovative and cutting-edge.
Article 39 runs a network of over 300 advocates who work with children and young people in a variety of settings in England – children in care, care leavers, children in hospital, children in custody and children who live at home with their families. We don’t ourselves manage advocacy services.
Our small team runs training courses and organises events, produces legal materials and guides, and provides tailored information to help advocates support individual children and young people to be heard and for their rights to be protected.
The 10 examples below, not in any order of priority, come from our recent, direct work with advocates. We receive consistently positive feedback from advocates on the impact of them using the law to assist children and young people.
‘Red tape’, ‘bureaucracy’ and ‘rules and regulations’ often have negative connotations. They suggest a curtailment of individual freedom and people not being able to do the right thing because of officialdom. Red tape and regulations are frequently conflated, as if they mean the same thing. They don’t.
Those who work within and manage children’s social care must follow the law. Primary legislation is nearly always subject to substantial debate and amendment by Members of Parliament and Peers in the House of Lords before it is passed. Even before it is introduced into Parliament, as a Bill, the proposals and plans will have been subject to public consultation. Until very recently, it was standard practice for public consultations to last at least three months.
There is another type of law which government ministers have significant control over. This is secondary legislation, or regulations. This is subject to far less parliamentary debate and scrutiny than Acts of Parliament.
Statutory guidance gives more detail to legal requirements. It is written by government to help public authorities like schools, hospitals and local authorities fulfil their legal duties. It must be followed unless the public authority has a very good reason not to.
Then there are non-statutory guidance and practice guides which communicate important knowledge from research and direct work with children and young people. These documents do not have to be followed but are regarded as best practice.
During 2021, we have used the law and statutory guidance to help:
- Children and young people in care see and spend time with their families.
- Stop long delays in complaints investigations, and to enable complaints to be investigated (including those relating to non-recent abuse in care).
- Secure financial assistance from children’s social care for children and young people living with their families.
- Stop children in care being moved, including during exam periods or being moved out of their home area against their wishes.
- Make sure a child in care could attend a family member’s funeral.
- Children in care to have and see a social worker.
- Make sure young people receive their leaving care allowances.
- Make sure children living in children’s homes are not subject to sanctions and punishments which are against the law.
- Children to keep their advocate when their parents or social workers said they couldn’t have one, or didn’t need one.
- Challenge the use of handcuffs when a child in care was moved from one children’s home to another.
In all of the examples above we provided information about the law and statutory guidance to help advocates do their best with and for children and young people.
We nearly always cite provisions in the Children Act 1989 and the Human Rights Act 1998 that can directly assist children and young people. Where it could help, we also cite provisions within the Equality Act 2010.
Most of the time, and in the majority of the examples above, we signpost specific regulations to back up what the child or young person wants to challenge or change. The regulations we commonly use to defend the rights of children and young people are:
- The Secure Training Centre Rules 1998 and The Young Offender Institution Rules 2000
- The Children (Leaving Care) (England) Regulations 2001 and the The Care Leavers (England) Regulations 2010
- Advocacy Services and Representations Procedure (Children) (Amendment) Regulations 2004
- Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004
- The Children Act 1989 Representations Procedure (England) Regulations 2006
- The Care Planning, Placement and Case Review (England) Regulations 2010
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014
- The Children’s Homes (England) Regulations 2015
We frequently quote from Working Together to Safeguard Children, which is statutory safeguarding guidance, and we routinely cite excerpts from the different volumes of statutory guidance produced by successive governments to support the implementation of the Children Act 1989.
We also cite relevant provisions of the United Nations Convention on the Rights of the Child, and statutory guidance which expects directors of children’s services and councillors who have lead responsibility for children’s services to take into account the general principles of the Convention – these are article 2 (children’s right to enjoy all of their rights in the Convention without discrimination), article 3 (the child’s best interests as a top priority in all actions concerning them), article 6 (children’s right to maximum survival and development) and article 12 (children’s right to express their views freely, and to have these views given due weight in all matters affecting them).
When politicians and policy makers, and those close to government, speak of professional freedom and cutting back red tape, we think of the children and young people we seek to help each and every day, and what would happen to them if the law wasn’t on their side.
This is not to say our current legal framework always works well for children. It doesn’t. There are many significant gaps in legal protection, and we consistently press for legislation which respects and upholds children’s rights. But we cannot overstate how important it is for children and young people, and their families, to have entitlements in law which can be used to question, challenge and change the decision-making and actions of those in positions of power over them.
 ‘Freedom vs responsibility’ was one of three dilemmas identified by the chair of the care review in September 2021. The other two relate to the restructuring (or not) of children’s social care, and whether help to families should be split from the protection of children. More here: https://childrenssocialcare.independent-review.uk/thinking-out-loud-three-dilemmas/ The online event takes place on 9 December 2021.
 MacAlister, J. (June 2021) The Case for Change, page 81.
 A summary of these attempts is provided in this piece by Article 39’s Director: https://sw2020covid19.group.shef.ac.uk/2021/04/28/beware-of-another-power-grab/