Category: Children’s rights

GOVERNMENT WITHDRAWS ‘MYTH BUSTING’ DOCUMENT AFTER LEGAL CHALLENGE

The Department for Education has withdrawn a controversial document about council duties to vulnerable children and young people, after Article 39 launched an application for judicial review.

The so-called ‘myth busting’ guide advised local authorities that they are legally permitted to reduce and remove support from children in long-term foster care, children who run away or go missing from home or care, children who are remanded to custody and young people who have left care and are still living with their former foster carers. 

Children’s Minister Nadhim Zahawi claimed the document simply clarified council duties, but Article 39 and 49 other charities and social work experts warned last September it contained numerous inaccuracies and risked vulnerable children and care leavers losing vital support. 

After correspondence with the Minister failed to elicit any agreement to correct the errors, or even a meeting to discuss our collective concerns, Article 39 instructed lawyers to begin legal proceedings.

Carolyne Willow, Article 39’s Director, said:

“It’s deeply disappointing that the Children’s Minister didn’t respond to our serious concerns months ago but what matters is that the document has now been withdrawn and the risks to children and young people minimised. We are relieved and delighted that children’s rights have prevailed.

“There is of course the possibility that social workers and local authority managers have already used the guide and we hope that councils will quickly review and rectify any removal or reduction of support.”   

As well as deleting it from the children’s social care innovation programme’s website, the Department for Education has committed to notify local authorities and others that the document has been withdrawn. It has also confirmed that any plans to issue a similar document in the future will follow a consultation process that includes Article 39, relevant organisations and children and young people who may be directly affected.

Oliver Studdert, solicitor at Simpson Millar, representing Article 39, said:

“It is absolutely right that this guide has been withdrawn. It is unfortunate that it has taken the issuing of court proceedings to achieve this, but it is reassuring that the Secretary of State has now acknowledged the concerns of Article 39 and other charities and experts concerning the removal of vital statutory safeguards for vulnerable children and care leavers.”

Notes

1.       As a very small charity, Article 39 was only able to take legal action to protect the rights of vulnerable children through pledges of financial support from organisations and individuals, including the British Association of Social Workers, The Centre for Outcomes of Care, Cherry Cottage Ltd, MAC-UK, Napo (Family Court Section), National Association for Youth Justice, National Association of Independent Reviewing Officers, NSPCC and the Social Workers Union.

2.       The 50 organisations and social work experts who wrote to the Children’s Minister last September, urging him to withdraw the inaccurate parts of the document, were: The Aire Centre; Article 39; Association of Independent Visitors and Consultants to Child Care Services; Association of Lawyers for Children; Association of Professors of Social Work; Association of Youth Offending Team Managers; Become; British Association of Social Workers England; The Care Leavers’ Association; Children England; Child Rights International Network; Coram Children’s Legal Centre; Coram Voice; ECPAT UK; Family Action; The Fostering Network; Howard League for Penal Reform; Independent Children’s Homes Association; Just for Kids Law; The MAC Project (Central England Law Centre and the Astraea Project); Nagalro, Professional Association of Children’s Guardians, Family Court Advisers and Independent Social Workers; National Association for People Abused in Childhood (NAPAC); National Association for Youth Justice; National Association of Independent Reviewing Officers; National IRO Managers Partnership; NYAS (National Youth Advocacy Service); Parents Of Traumatised Adopted Teens Organisation (The Potato Group); Refugee Council; Social Workers Union; Social Workers Without Borders; Southwark Law Centre; UNISON; Dr Maggie Atkinson, Children’s Commissioner for England 2010-2015; Sir Al Aynsley-Green, first Children’s Commissioner for England 2005-10; Wendy Bannerman, Director of Right Resolution CIC; Jay Barlow, Napo National Vice-Chair; Liz Davies Emeritus Professor of Social Work, London Metropolitan University; Anna Gupta, Professor of Social Work, Royal Holloway University of London; Pam Hibbert OBE; Ray Jones, Emeritus Professor of Social Work, Kingston University and St George’s, University of London; John Kemmis, former Chief Executive Voice, NAIRO Patron and Article 39 Expert Panel member; Dr Mark Kerr, Managing Partner, The Centre for Outcomes of Care; Jenny Molloy, Author, Adviser and Trainer; David Palmer, Lecturer in Criminal Justice Services, University of Northampton; Peter Saunders, Founder NAPAC; Mike Stein, Emeritus Professor, University of York; June Thoburn CBE, Emeritus Professor of Social Work, University of East Anglia; Dr Nigel Thomas, Professor Emeritus of Childhood and Youth, University of Central Lancashire; Judith Timms OBE, Founder and Trustee of the National Youth Advocacy Service (NYAS) and a Vice President of the Family Mediators Association; and Jane Tunstill, Emeritus Professor of Social Work, Royal Holloway, London University.

3.       Article 39 is represented by Oliver Studdert, Partner in Public Law and Eleanor Gauld at Simpson Millar, and Steve Broach and Khatija Hafesji from Monckton Chambers.

4.       Our application was made to the High Court on 18 February 2019.

Article 39 threatens legal action to protect vulnerable children

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.

John Kemmis: a man children could always depend upon

John KemmisIt is with tremendous sadness that we mourn the loss of John Kemmis, who died with his family by his side yesterday afternoon.

We also celebrate who John was, what he stood for and what he gave to children.

Maria, 54, met John when she was 3 or 4 years-old and first went into care. John was Maria’s social worker. She said:

“There were two incredibly kind people that I remember and cherish from my childhood, one was the cook from the children’s home and the other was John. I will never forget him.”

John was a “really significant” person in Hiwet’s life. Now aged 38, she came to the UK as a child refugee and it was only through having an advocate that she was able to be fostered and move from her children’s home. Hiwet has many lovely memories of working with John at Voice for the Child in Care (now known as Coram Voice), and thinks of him with love and happiness.

Article 39’s national campaign to strengthen children’s independent advocacy was John’s idea. His vision and determination led to a Parliamentary roundtable in June this year, after which the Children’s Commissioner for England established an Advocacy Working Group which will report early in 2019.  Nearly 50 organisations now back our campaign, whose goals were crafted by John.

Carolyne Willow, Article 39’s Director, said:

“John was a man of deep principle and purpose. He stood by children because he believed in them. He saw and felt the injustice of children not being heard, not being believed and not being helped. Then he translated what he saw and felt into action. And brought others with him. Over many years.

“John was an exceptionally kind and warm human being. His smile was energising and his commitment motivating. If we in the charity world are allowed to have comrades, then John Kemmis was my comrade. His work and legacy goes on.”

You can read more about John’s 50+ year career in social work and children’s rights here (published by the British Association of Social Workers).

In October 2018, John was the inaugural winner of the Stand Out Children’s Advocacy Award. Read more here.

Government document tells councils they can bypass legal obligations

A document recently published by the Department for Education tells councils what they are allowed to do in respect of the care and protection of children and young people. It is published on the Children’s Social Care Innovation site.

As we wait for responses to our freedom of information (FOI) requests – see below – we have produced a table showing what’s wrong with the document:

What’s wrong with the ‘myth busting’ document Nov 2018

As can be seen, the ‘myth busting’ document claims to be focused on statutory guidance, though it also concerns primary and secondary legislation.

Acts of Parliament are primary legislation. Secondary legislation is also approved by Parliament though with much less scrutiny and debate. Other terms for secondary legislation are regulations and statutory instruments.

Both primary and secondary legislation must be followed.

In addition to complying with the law, local authorities must follow statutory guidance (issued by government departments) unless there is very good reason not to.

Through a series of so-called ‘myth busting’ questions, the Department for Education document claims to summarise the obligations in statutory guidance and then proceeds to set out what the guidance allows. The document states “all of the responses [that is, the ‘what does the guidance allow’ content] have been agreed by the Department for Education and their lawyers in consultation with Ofsted”.

Action to date
Article 39 co-ordinated a letter (with 50 signatories) to the Children’s Minister setting out the legal inaccuracies in the ‘myth busting’ document. We asked him to withdraw the parts of the document which are inaccurate. Six days later we received a response from the Minister. Very regrettably, the Minister did not agree to withdraw the inaccurate content.

Minister's response to joint letter of concern 10 September 2018

After seeking further legal advice, and convening a meeting of concerned organisations, Article 39 submitted the following FOI questions to the Department for Education and Ofsted. Answers to these FOI questions are due tomorrow (16 November).

Our questions to the Department for Education
1) Please provide a copy of the equality impact assessment completed in respect of the Children’s Social Care statutory guidance myth busting document published by the Department for Education (attached with this request).
2) Please provide copies of correspondence between local authorities and the Chief Social Worker for Children and Families, and any other officials within the Department for Education, in connection with the Children’s Social Care statutory guidance myth busting document published by the Department for Education.
3) Please state the date of publication of the Children’s Social Care statutory guidance myth busting document.
4) Please state the date or dates agreement from Department for Education lawyers was sought on the content of the Children’s Social Care statutory guidance myth busting document, and by whom.
5) Please state the date or dates agreement was provided by Department for Education lawyers on the content of the Children’s Social Care statutory guidance myth busting document.

Our questions to Ofsted
1) Please provide copies of correspondence between Ofsted and the Chief Social Worker for Children and Families, and any other officials within the Department for Education, in connection with the Children’s Social Care statutory guidance myth busting document (attached with this request).
2) Please state the date or dates Ofsted was asked to agree the responses to the ‘myth buster’ questions contained within the Children’s Social Care statutory guidance myth busting document.
3) Please state the date or dates Ofsted gave its agreement to the responses to the ‘myth buster’ questions contained within the Children’s Social Care statutory guidance myth busting document.

“It’ll tell you everything”

rights4children-logo-web

A brilliant new website for children and young people living in institutions goes live at 4pm today.

Called rights4children, the site is packed with information about children’s rights, on topics important to them. It has been created by Article 39 working with the web design company Wholegrain Digital.

Forty-eight children and young people, aged between 10 and 20 years, gave expert advice on the content and design of rights4children.

Children and young people living in Lincolnshire secure unit and William Henry Smith residential school were closely involved in the development of the site for several months.

Ten year-old Bailey said:

“Go and check the website, it’ll tell you everything”.

Erson said:

“It would have been useful to have a website like this when I first arrived at my secure children’s home”.

“I think the information in this website would allow me to make better choices if I felt I was being unfairly treated” added Tyler.

Content is organised into four sections – ‘Your life, your feelings’‘Where you live’‘When things are difficult’ and ‘Moving and leaving’ – and covers a wide variety of children and young people’s concerns, from pets, to privacy, to food and special diets, to restraint and use of force and making a complaint.

The site launches with stories of six adults who spent time in institutions as children. They reflect on what helped them get through tough times. This part of the site was added after many children and young people communicated they want to have hope that life can get better for them.

David Hunt from Wholegrain Digital said:

“The visual design aims for a warm and caring environment whilst keeping the mood positive, fun and engaging for all age groups. We are so pleased to have worked with Article 39 to bring a simple-to-use website to the children who need it the most.”

Carolyne Willow, Article 39’s Director, said:

“Children who live in group settings have the right to a great childhood, where they feel loved, respected and proud of who they are and their achievements. But life can be really tough for many children living away from home, and rights4children aims to be there for them – telling them about their rights and where they can get help. We’re hoping adults will use the site too, because there can never be too many people standing up for the rights of children.”

Notes

  1. The site can be found at www.rights4children.org.uk
  2. A young person detained in Cookham Wood young offender institution came up with the site’s name.
  3. Our site would not have been possible without the expert advice of children and young people, and support from adults who look after them. THANK YOU. A full roll of honour can be found on the site.
  4. Article 39 is very grateful to the Esmée Fairbairn Foundation and The Bromley Trust who fund our work.