Response from Article 39
Article 39 is a registered charity which fights for the rights of children living in state and privately-run institutions in England. We do this through awareness-raising of the rights, views and experiences of children; legal education; practice development; and policy advocacy, research and strategic litigation. We run the Children and Young People’s Advocates Network which has 480+ members working directly with children and young people in different settings. Our ON YOUR SIDE advice service provides information about the law and government guidance to independent advocates and others to help protect the rights of individual children. We take our name from Article 39 of the United Nations Convention on the Rights of the Child, which entitles children who have suffered rights violations to recover in environments where their health, self-respect and dignity are nurtured.
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Question – 400 words limit
In your view, which public bodies have the greatest potential to make a positive impact on care-experienced children and young people if they were to be appointed as corporate parents? Why?
Local authorities are the public body with the greatest potential to ensure every child they are parenting feels loved, wanted, valued and understood; that their needs are met, and their rights fulfilled. They also have the greatest potential to have an enduring positive impact on the lives and life chances of adults whom they formerly looked after. The unique and distinctive parenting role of local authorities arises from their legal obligations towards individual looked after children and care experienced adults, and their families. Local authorities’ knowledge and understanding of the diverse needs, histories and cultures of local communities, their delivery of key public services and functions, and their democratic mandate and accountability to citizens, makes this parenting role (in principle) even stronger.
We start with local authorities because we consider it is back-to-front to consider extending the scope of the corporate parenting principles before first acknowledging the scale and depth of neglect currently present within the children’s care system, and the urgent need to overhaul the parenting role of local authorities.
The official definition of neglect is:
The persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development.[1]
As a charity focused exclusively on the rights and welfare of care experienced children and young people and/or those who live in institutional settings, much of what we hear on a day-to-day basis about the circumstances and treatment of looked after children and care experienced adults meets this official definition of neglect.
Extending the scope of the corporate parenting principles before fixing the gaping fault lines within local authority culture and practice risks diverting attention from the parenting task – just as galvanising extended family members to always have their younger relatives in mind, and to do their best by them, would not, within a family setting, sufficiently compensate for a home environment where a child feels unloved, unsettled and unsafe. The primary challenge in this scenario is to deal with what is going wrong for the child at home, and the same is true for the children’s care system. The focus must be on transforming how local authorities fulfil their parenting obligations.
In addition, we strongly urge the introduction of statutory duties on central government around the resourcing of the children’s care system and the strategic planning and commissioning of highly specialist resources for children and their families.
Securing good parenting was the policy intention behind the statutory corporate parenting principles:
Local authorities already have a wide range of duties to children they look after and to those leaving their care. The Bill sets out a framework of corporate parenting principles that overlay these existing responsibilities of local authorities towards looked after children and those leaving care to make clear what it means for the authority as a whole to act as a good parent.[2] [Emphasis added]
In our response to the care review’s interim report we recommended:
The purpose of care should be reimagined, and statutory corporate parenting principles replaced (including the impersonal terminology). Vital provisions from the [United Nations Convention on the Rights of the Child] previously omitted from the statutory principles must now be added, such as: nurturing children’s family relationships (including with their siblings) and supporting reunification with their parents wherever possible, and as quickly as possible; ensuring all children can enjoy their rights without discrimination; providing environments where children feel loved, secure, respected, understood and can thrive and pursue their individual interests and goals; helping children recover from experiences which have caused them significant pain, distress and anguish; and being reliably there for them for as long as is needed throughout their adult life.[3]
Question – 300 words limit
In your view, are there any public bodies that should not be considered for appointment as corporate parents? Why?
When children are unable to live with their families, local authorities should continue to undertake the state’s parenting role. We welcome the government’s recent confirmation that there are no plans to disturb this critical role of local authorities: in its consultation outcome on its children’s social care strategy, the government stated: “local authorities will remain responsible for fulfilling all their legal duties towards Looked After Children and care leavers – as set out in the Children Act 1989”.[4]
We do not support other public bodies being conceived of, or appointed, as corporate parents, because we believe this would dilute the role of local authorities and potentially make redress and accountability even more prolonged and difficult.
Instead, we believe central government should have statutory duties around resourcing and promoting the well-being of looked after children and care experienced adults, and ending the inequalities they face which result from their care experience.
In addition, other public authorities should be legally required to support local authorities in their parenting role.
It is our strong view that local authorities’ parenting role needs to become far more concentrated, culturally and organisationally – through a standalone body within the local authority headed by a statutory postholder whose functions include championing looked after children and care experienced adults and driving the effective implementation of relevant law and government guidance at the local level. Applying the local authority’s parenting function to other public bodies risks diluting this precious responsibility.
Further, we strongly recommend a change in terminology from ‘corporate parent’. As we stated in our response to the care review’s interim report:
After persistent and widespread revelations of abuse and neglect in care in England during the 1980s and 1990s, the term ‘corporate parent’ came to be used by policy makers to emphasise the moral and legal obligations of local authorities and other agencies. This was a very important endeavour at the time. However, today the term is widely seen as impersonal and unhelpful in focusing attention on what children need as they grow up, just like all other children, and what they need in addition as children separated from their parents and wider family. We believe the concept of ‘corporate parenting’ encourages detached and dispassionate language and terminology and works against what children consistently say they want from care – to feel loved, secure, to understand their identity and their past and to be connected to people who appreciate and value them and stay in their lives.[5]
Article 39 has previously suggested ‘shared parenting’ as possible new terminology[6], since this recognises the continuing role of birth parents for many children (and adults), and also signals the collective responsibilities of different professionals and organisations in the life of a child or an adult.
To ensure there is no dilution of the local authority parenting function, it would be preferable to consider separating the high-level statutory parenting functions of local authorities from new duties on other public bodies. This way, local authorities would rightly retain the overarching responsibility for the rights and well-being of looked after children and care experienced adults. At the same time, we propose that other public bodies be legally required to discharge their functions having regard to the need to safeguard and promote the rights and well-being of looked after children and care experienced adults, and the need to end the inequalities faced by them which result from their care status.[7]
Question – 400 words limit
Are there any principles missing from current set of corporate parenting principles that, if included, would positively impact opportunities, experiences or outcomes for care experienced young people? Additionally, in your view, are there any existing principles that should be strengthened? If you suggest a new principle, please explain why you believe it would have this positive impact.
The current statutory corporate parenting responsibilities were introduced without any prior public consultation. Although they are a composite of existing local authority statutory duties, they are significantly weaker – because they simply require local authorities to “have regard to the need…”.
Parliamentarians sought to expand and strengthen the principles as the Children and Social Work Act 2017 made its way through parliament. However, the only change made was the insertion of “physical and mental”[8] before “health and well-being” in the first principle, itself a government amendment.
During the passage of the legislation, Article 39 sought to strengthen the principles so that they reflect existing local authority statutory duties, as below.
| What the current principles would look like if they reflected existing statutory duties (1) A local authority in England must, in carrying out functions in relation to the children and young people mentioned in subsection (2)— (a) act in the best interests, and safeguard and promote the welfare, of those children and young people;[9] (b) encourage those children and young people to express their views, wishes and feelings;[10] (c) give due consideration to the views, wishes and feelings of those children and young people;[11] (d) make the best use of services provided by the local authority and its relevant partners;[12] (e) promote high aspirations, and seek to secure the best outcomes, for those children and young people; (f) ensure children and young people are safe, and have stability in their home lives, relationships and education or work, and promote their educational achievement;[13] (g) continue to provide advice, assistance and support to those children and young people into their adulthood and safeguard and promote the welfare of care leavers.[14] |
We want the corporate parenting principles to be replaced by a set of statutory aims of the children’s care system. These would be drafted so as to recognise and meet all of the needs of care experienced children and adults, including the additional needs arising from separation, loss, trauma and abuse. They should be worded using sensitive, person-focused language which leaves local authorities in no doubt about their fundamental and enduring parenting obligations towards looked after children and care experienced adults. At the end of 2022, as part of the national #KeepCaringTo18 campaign, we obtained the views and perspectives of 355 16- and 17-year-olds about what care means to them; 58 respondents were currently or formerly looked after by local authorities.[15] There were no differences between those with and without care experience in the priority they gave to children feeling loved, appreciated and protected. These findings were consistent with earlier research and calls for change from care experienced children and adults.[16] We need the law to clearly communicate the state’s parenting obligations, fixed around what we know children and adults need throughout their lives from their parents and others who love them.
A genuine commitment to the rights and well-being of care experienced children and adults would require parenting obligations to last for as long as care experienced adults have cause to want, and need, their local authority in their life. This means the statutory aims of the children’s care system would apply to every person currently or formerly looked after, irrespective of their age.
Question – 300 words limit
What accountability measures would be needed to ensure that new corporate parents fulfil their responsibilities in a way that delivers positive impacts for care-experienced children and young people?
We do not support a wide array of public bodies being legally defined and conceived of as corporate parents.However, we do strongly support new duties on public authorities to discharge their functions having regard to the need to safeguard and promote the rights and well-being of looked after children and care experienced adults, and the need to end the inequalities faced by them which result from their care status. We further propose statutory duties on central government departments / Ministers of the Crown. All of these new duties should be drafted in such a way that looked after children and care experienced adults could legally challenge unlawful decision-making and conduct by public bodies.
Extending the corporate parenting principles to other public bodies is no answer to the scale and depth of failure by both central and local government in meeting the needs and fulfilling the rights of care experienced children and adults. Indeed, we believe it will make things worse for children and adults who rely on local authorities to parent them, and rely on central government to properly fund and support local authorities in meeting their parenting responsibilities. The accountability for individual children and adults not feeling cared for, protected and secure, and having to fight for their basic needs to be met rests squarely with central and local government. Any dilution of this would be seriously regressive.
Article 39 consistently encourages advocates to use the existing corporate parenting principles when they are helping individual children and young people challenge local authority decision-making and failure to fulfil their obligations. Across the past year (to end September 2023), we received 150+ requests for legal information from advocates via our ON YOUR SIDE advice service. In over a third of the scenarios presented to us, we recommended that advocates explicitly remind local authorities of their corporate parenting responsibilities. This was always in addition to other legislation / legal duties. The challenges faced by looked after children and care experienced adults, where we suggested use of the corporate parenting responsibilities, included:
- Children not being listened to, visited often enough or supported by their social workers.
- Local authority imposing conditions on how a child communicates their complaint.
- Local authority refusing to accept a complaint on behalf of a looked after child who is disabled (wrongly stating that the complaint had to be made elsewhere).
- A looked after child with learning difficulties without a primary school place for nearly two years.
- Local authority imposing sanctions on a care experienced young adult who is disabled, following a complaint by a neighbour.
- Local authority requiring a care experienced young adult going to university and setting up home for the first time to purchase items using a pre-set (maximum) price list, which was impossible to adhere to.
- Local authority billing a care experienced young adult for mental health support which was arranged shortly after they turned 18 and had experienced an acute mental health crisis.
- Local authority serving a notice to quit accommodation on a care experienced young adult while they were awaiting a decision about their first employment.
- Local authority moving a looked after unaccompanied child to an area where they felt very isolated and unhappy.
- Local authority refusing to support a looked after teenager before and after he was given a custodial sentence.
- Local authority refusing to support a care experienced pregnant adult aged over 25 who had received no support after they ceased to be looked after.
- Local authority serving a 28-day notice to move a child from a residential placement where they were happy and settled, receiving therapy and doing well in their education.
- Local authority refusing to fund internet connection for a looked after child living in ‘independent accommodation’, even though the child was too young to enter into a contract themselves and internet access was officially agreed to be necessary for their safety.
- Local authority refusing to support an 18 year-old to continue living in a place where they were happy and settled, despite this being previously officially agreed, leading to an acute mental health crisis.
- Local authority deciding to move a looked after child from their residential school where they were happy and thriving, against the child’s and their parents’ wishes.
- Local authority deciding to move a looked after child with two weeks’ notice to an area where they would no longer be regularly able to see their family.
- Local authority failing, over a long period, to support two looked after siblings to see and spend time together.
- Local authority failing for several weeks to support a young person who had newly left care, causing severe distress and worry.
- A young care experienced adult required legal help but was unable to find a law firm with capacity to take on new legal aid clients.
- Looked after children being handcuffed by the police.
Question – 400 words limit Are there any examples of good practice you are aware of where a public body has adapted their policies, practices or services with the aim of better serving and supporting care experienced children and young people? If so, please describe this good practice here.
Our work and partnerships with care experienced children and adults, and the training and legal information services we provide, give us an abiding impression of many children’s social care managers and staff being emotionally and organisationally detached from the needs and feelings of looked after children and care experienced adults. Despite children’s rights and advocacy services being part of the children’s social care landscape for 35+ years[17], we continue to hear from children and young people that they were not informed of their right to advocacy during times of desperate need, and we frequently hear accounts of professional defensiveness and resistance to challenge. Radical change is required in both the culture and structures of local authorities to remedy this.
We witness the same general detachment from central government, and particularly abhor recent policy developments around the regulation of care-less accommodation for 16- and 17-year-olds, the housing of unaccompanied children in Home Office hotels, and the persistent failure of ministers to properly fund the children’s care system and remove profit-making from vulnerable children’s lives. That independent advocacy services continue to be under-funded and inaccessible to many children and young people desperately in need of their help is also deeply concerning. These services are vital in holding local authorities to account for how they parent.
We commend the many local authorities who are making high-level policy commitments to treat care experience as if it were a protected characteristic under the Equality Act 2010. Video and written reports from council meetings where these policies are adopted demonstrate an overwhelming desire to be there for looked after children and care experienced adults, and to provide them with the best possible care, protection and support. It is to our national shame that for so many children and adults the reality of their lives is the polar opposite of this.
Article 39
October 2023
[1] Page 108: https://assets.publishing.service.gov.uk/media/5fd0a8e78fa8f54d5d6555f9/Working_together_to_safeguard_children_inter_agency_guidance.pdf
[2] Paragraph 2: https://publications.parliament.uk/pa/bills/lbill/2016-2017/0001/17001en03.htm
[3] Paragraph 29: https://article39.org.uk/wp-content/uploads/2021/12/Article-39-response-to-Case-for-Change-13-August-2021-with-numbered-recommendations.pdf
[4] Page 48: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1185931/Children_s_Social_Care_Stable_Homes__Built_on_Love_consultation_response.pdf
[5] Paragraph 68: https://article39.org.uk/wp-content/uploads/2021/12/Article-39-response-to-Case-for-Change-13-August-2021-with-numbered-recommendations.pdf
[6] https://article39.org.uk/2022/05/16/the-future-of-care/
[7] The latter part of this proposed duty is modelled on the socio-economic duty in section 1 of the Equality Act 2010 (not yet commenced).
[8] https://bills.parliament.uk/bills/1774/stages/8880/amendments/3337
[9] Section 22(3)(a) of the Children Act 1989 requires local authorities to safeguard and promote the welfare of looked after children. Section 19A of the Children Act 1989 requires local authorities “looking after a child to advise, assist and befriend him with a view to promoting his welfare when they have ceased to look after him”.
[10] Section 22(4) of the Children Act 1989 requires local authorities to ascertain and give due consideration to looked after children’s wishes and feelings.
[11] Section 22(4) of the Children Act 1989 requires local authorities to ascertain and give due consideration to looked after children’s wishes and feelings.
[12] Section 22(3)(b) of the Children Act 1989 requires local authorities “to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case”. In addition, care planning regulations require local authorities to assess children’s “needs for services to achieve or maintain a reasonable standard of health or development”, and they must prepare a care plan setting out how these needs will be met.
[13] Section 47(1) of the Children Act 1989 requires the local authority to make enquiries when a child is known, or suspected, to be suffering from significant harm, in order to decide whether they should take any action to safeguard or promote the child’s welfare. Section 22(3A) of the Children Act 1989 requires local authorities to promote the educational achievement of children they are looking after; and the Children and Families Act 2014 imposes a duty on local authorities to appoint at least one person to ensure that duty is discharged.
[14] The Children Act 1989 requires specific actions by local authorities, including providing practical assistance, when this is necessary, to safeguard and promote the welfare of a care leaver.
[15] https://article39.org.uk/wp-content/uploads/2023/01/What-care-means-to-16-and-17-year-olds-summary-23-Jan-2023.pdf
[16] See, for example:
– Rehill, J. and others (2022) The care files: Exploring the experiences of teenagers entering the care system. Nuffield Family Justice Observatory.
– The Black Care Experience (2021) The black care experience 2021 report.
– Our Care Our Say (2021) Is this the time people are actually going to listen?
– Coram Voice and The Rees Centre (2020) The voices of children in care and care leavers on what makes life good: Recommendations for reviewing the care system.– The Care Experienced Conference (2019) The conference for care experienced people Liverpool Hope University, 26th April 2019. Summary report.
– The Care Experienced Conference (2019) The conference for care experienced people Liverpool Hope University, 26th April 2019. Research and academic group report.
– Children’s Commissioner for England (2019) Children’s voices: children’s experiences of instability in the care system. Office of the Children’s Commissioner for England.
– The Care Inquiry (2019) The views and recommendations of children and young people involved in the Care Inquiry.
– Dixon, J. and Lee, J. with Stein, M. (2015) Corporate parenting for young people in care. Making the difference? Catch 22.
– Voice for the Child in Care and National Children’s Bureau (2004) Start with the child, stay with the child: A blueprint for a child-centred approach to children and young people in public care. Voice for the Child in Care.
[17] Leicestershire County Council was the first local authority in the UK to establish a children’s rights service, in 1987.