Category: Children’s social care

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threatening a judicial review if a misleading document about local authority duties towards vulnerable children is not withdrawn.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.

Secret report on future of children’s services finally published

After a two-year delay, the Department for Education (DfE) has published the report it commissioned from LaingBuisson and Cobic, which sets out how children’s social care services can be moved out of local authority control.

The DfE Advisory Panel, consisting of Professor Julian Le Grand, Professor of Economics, London School of Economics; Alan Wood, then President of the Association of Directors of Children’s Services; and Isabelle Trowler, Chief Social Worker for Children and Families in England, encouraged LaingBuisson and Cobic to be “bold” and “ambitious”. Trowler is the only social care professional on the Innovation Programme Investment Board, which hands out innovation funding to local councils and others. She has been the lead champion of testing out deregulation in children’s social care, which could be boosted by a Bill currently in Parliament.

Article 39 pressed for publication of this report, since we believed it might explain why the Government included radical measures in the Children and Social Work Bill to allow individual councils to be excused from their statutory duties in children’s social care.

Yesterday’s publication of the report shows we were correct to suspect links between the review and the exemption clauses, which were knocked out of the Bill by Peers last month. Members of Parliament begin debating the Bill on Monday.

The report points to:

  • a clear appetite from a number of significant providers to enter new areas of the market including assessment and safeguarding [children] as long as it is underpinned by a clear policy direction from national government services and a sensible approach to costs and risk sharing”

    “There is strong interest by incumbents active in existing markets for looked after children (foster care, children’s homes and social work staffing agencies) to expand their range of business into ‘Assessment and Care Planning Services’ processes”

    “lack of direct experience [within profit and voluntary sectors] of delivering Assessment and Care Planning Services”

    These are policy areas the Government and a select number of councils have proposed as candidates for exemptions from local authority duties. The plan is for exemptions to be ‘trialed’ with innovation funding, presumably to enable independent contractors to develop their experience.

  • the willingness of independent contractors “to play the long game if consistent government support and requisite provisions were in place”

    This confirms our fears that exemptions from statutory duties were to be used as a stepping stone to children’s social care services being moved wholesale from council control.

On privatisation, LaingBuisson and Cobic conclude:

“Although the current policy direction by ministers is not to generate a whole-scale marketisation of children’s social care, we concluded that it is hard to envisage how significant additional capacity and diversity could be created without more services being exposed to market forces”.

The two companies complain about the “reluctance by local authorities to engage the market and a lack of incentives for them to purchase services externally”.

They state there is “strong evidence of endemic ‘in‐house first'” practices in relation to local authorities seeking to place children they look after with their own foster carers and in their own children’s homes. They consider ways of overcoming this.

Discussions took place with companies in September and October 2014, revealing independent contractors perceive three main barriers to “market entry”: reputational risk; commercial risk; and risk that government policy might change. The report states:

“One private equity investor we spoke to described this as a ‘Marmite test’ – some organisations will be highly averse to the risk of front‐page scandals if something goes wrong. Others are more phlegmatic.”


“The large, broad‐based outsourcing companies we spoke with said they were highly averse to reputational risk and would be unlikely to be early entrants to this market. In order to address this, government would need to be clear about the levels of responsibility, liability and accountability they would require from companies taking on the delivery of children’s services.”

Despite the fear of reputational risk, LaingBuisson and Cobic state:

“We found a number of examples of suppliers demonstrating a keen interest in entering into complex and difficult child protection markets provided that accountability and responsibility was clearly articulated and risk appropriately shared.”


“two large providers were confident that there were enough good quality social workers available across England to deliver social care services via external companies.”

LaingBuisson and Cobic dispute the general consensus that independent providers will not be attracted to running children’s services that carry high risk:

“experience in other health and social care segments does not support the view that independent sector suppliers limit their interests to easy to deliver services. While that can happen, for example in elective surgery under ‘choose and book’, which is set up in such a way to allow independent sector providers to offer only the slots they wish to, there are other areas where the entire history of independent sector provision has been to supply specialised services for patients who are difficult to place. The most prominent example is mental health hospital provision.”

The report includes a review of outsourcing in the United States, Canada, Australia and New Zealand. LaingBuisson and Cobic explain:

“most overseas governments intent on outsourcing have developed market capacity by issuing a regulation requiring certain specific services to be outsourced to a third party outside of state government. This has been achieved successfully in parts of the USA, New Zealand and Australia and has also been applied in both the NHS and adult social care in England and most recently in the National Offender Management Service. This mechanism could be rolled out in children’s services in England along similar lines… [It] could commence with the outsourcing of those services where there is already an established market, such as fostering placements, residential placements and adoption services, extending into other areas of provision.”

Central government forcing councils to hand the majority of their children’s services funding to independent contractors is one approach considered in the report. This is what happened in adult social care in the 1990s, LaingBuisson and Cobic explain:

“A requirement to outsource a proportion of the service could also be stipulated along the lines of the 1993 single transitional community care grant where 85% of expenditure was ring‐fenced to the independent sector.”

They advocate “multi‐year” contracts “calculated on the predicted levels of population and service demand. As a consequence commissioners and providers are able to focus on improving processes and activities to achieve outcomes, with additional rewards for achieving the desired outcomes”.

They recommend Children’s Trusts become Children’s Commissioning Trusts – “autonomous not‐for‐ profit commissioning organisation[s]” which only provide services to children and families “as a last resort”. The Trust would “sub‐contract out support assessments for children, retain the decision‐making function (as it must) as to what support to provide to a child, and then engage a third party support provider to actually deliver the service”.

This model, LaingBuisson and Cobic explain, would require the Trust “to retain significant expertise on the control of its statutory functions”. It goes on, however: “If the children’s trust was to be created under a direction by the Secretaries of State there would be no such restriction to prevent onward delegation”.

The report also states:

  • “There are no truly large-scale organisations, i.e. with revenues in excess of £1bn per year” operating in children’s social care
  • Local authorities who are not struggling to meet their responsibilities to children could outsource their functions and “retain a thin commissioning and contracting function alongside all statutory responsibilities, with the functions being delegated to the trust”.  Under this voluntary model,“the Secretary of State could still reserve the right to remove the statutory responsibilities from the local authority and make the trust accountable to the Secretary of State”
  • the current Trust model (2014) has “fundamental impediments”, including that they “have not been subjected to any market testing or procurement competition prior to contract award”; they are “in market terms, single monopolistic providers within a given geographical area with a guaranteed income stream and are free from any external competition”; and they are not forced “to market test or commission the services they provide and they continue, as do local authorities, to be conflicted in their roles of both provider and commissioner”. LaingBuisson and Cobic conclude: “while we are optimistic that the trust model has the opportunity to provide a more social work focused model, we do not see it as a significant lever engaging the independent sector or leading to a growth in the market”
  • Action for Children and Barnardo’s “on the face of it appear to be absorbing approaching half of English councils’ £441m (2012/13) spending on children’s social care supplied by voluntary sector providers”.

The DfE’s response to the 2014 report, also published yesterday and dated December 2016, states:

“this is an independent report and, in a number of areas, it goes beyond government policy. For instance, it sets out an option for how regulation might compel all local authorities to outsource all or a proportion of services. We will not be implementing this option… We want to support improvement by freeing up good local authorities to be innovative with the solutions they put in place, not by compelling them to outsource. We therefore reject those options which would either centralise the delivery of children’s social care services, such as the option to establish a National Children’s Social Care Commissioning Board, or allow profit- making organisations to deliver them.”

Article 39’s Director, Carolyne Willow, states:

“This suppressed report shows we and others were right to fear a hidden agenda on the exemption clauses. LaingBuisson and Cobic have told government that independent contractors are willing to play the long game in waiting for councils to hand over the majority, if not all, of their children’s social care services. But first they need to develop their experience in key areas of working with children and families and supporting and monitoring the welfare of children in care. This fits exactly with the types of plans for exemptions from statutory duties we have been hearing about.

“This explosive report underlines in thick red pen the risk to children of Parliament allowing individual councils to opt out of their legal duties. We hope Members of Parliament will be robust in their defence of children’s social care rights, and refuse to allow the clauses to be reinstated in the Bill.

“The Chief Social Worker for Children and Families has a vital and unique role in championing the rights of children and young people who depend on laws and the state to protect, look after and support them when their families are unable to do so. Since she had a pivotal role in recommending and steering this review, we believe it is now incumbent on Isabelle Trowler to set out her own vision for excellent children’s social care services.”

The report and the Government’s response can be viewed here.

The LaingBuisson project team comprised:

William Laing, CEO, LaingBuisson
Malcolm Newsam, Cobic Consultant Advisor
Elaine Redding, Cobic Consultant Advisor
Andrew Smith, Director of Finance, Cobic
Dr. Nicholas Hicks, Chief Executive, Cobic
Marie Tucker, Cicada Services

Defending children’s social care rights

Article 39 is one of 31 organisations opposing the exemption clauses in the Children and Social Work Bill, which will allow the removal of council’s statutory duties towards vulnerable children and care leavers area-by-area.

More than 140 individual experts, including many parents and carers of disabled children, are also calling for the exemption clauses to be removed from the Bill.

The Bill reaches Report Stage in the House of Lords on 18 October. We are working hard to persuade Peers to join together to defend children’s social care rights.

Read our briefing here.

Visit the Together for Children site for more information about the campaign.

DfE refuses to release key children’s services report

The Department for Education has today refused our freedom of information request for disclosure of a report it commissioned from LaingBuisson in 2014. We understand the report contains advice for the Government on moving children’s social care services out of local authorities. This could include the major transfer of children’s services to profit-making companies.

In February 2014, the Government published a report into the future of Birmingham children’s services written by Professor Julian Le Grand, Alan Wood and Isabelle Trowler. They argued that improvement in children’s services at Birmingham was:

“…hampered by the current lack of available improvement capacity, whether in the private, not-for-profit or local authority sectors. We need urgently to consider how such capacity can be created or promoted such that the range of options available can be fully explored. This is particularly the case for a large authority like Birmingham where both the scale and persistent nature of the problem indicate the need for a radical, long-term solution.”

Le Grand, Wood and Trowler* recommended the DfE commission a study on developing different options for the delivery of children’s services which could be triggered by the Secretary of State. They said this study should be completed by September 2014.

Since this study is highly pertinent to the Children and Social Work Bill, which threatens to massively deregulate children’s social care, we asked for a copy of the report last month. Today’s refusal relies on an exemption in the Freedom of Information Act 2000 which permits continuing secrecy when future publication is planned. However, the refusal states the Government plans to publish the report in “summer 2016”, which has already passed. The response states, “It is not reasonable for the Government to be expected to release piecemeal information in advance of its planned timetable”.

We will request an internal review of the refusal, mindful that this process could take up to two months – which would be too long for the next stage of the Children and Social Work Bill’s deliberation by Peers (18th October).

*Julian Le Grand is Professor of Social Policy at the London School of Economics, Alan Wood is a former teacher and children’s services senior manager and Isabelle Trowler is Chief Social Worker for Children and Families.

Review of children’s residential care

Article 39 congratulated our friends at Every Child Leaving Care Matters yesterday, when their sustained lobbying for Staying Put for 18 year-olds leaving children’s homes was officially recognised by Sir Martin Narey’s review into residential care. Staying Put is the term given to young people’s right to stay in their foster home until the age of 21, introduced in the Children and Families Act 2014. Young people leaving children’s homes have no equivalent right.

Sir Martin does not recommend that all 18 year-old care leavers be entitled to stay in their care placement until the age of 21, but instead argues for significantly increased support (subject to funding). He also urges Ministers to work with leading figures in Every Child Leaving Care Matters, who are care leavers themselves, in introducing this new support. This is a great step forward.

There are other findings in the report which should bring new and increased respect for residential care, including recognition of the very positive role it can play in supporting children to live in families (when this is best for them and concurs with their own wishes and feelings).

However, other observations and conclusions in the Narey Review present potential risks to children’s rights.

First, Sir Martin recommends the Department for Education consider how to encourage “the voluntary and private sector to enter the secure care market”. All but one of the country’s 14 secure children’s homes are run by local authority children’s services; the other is run by a charity and legislation already permits not-for-profit organisations to manage such homes. So this recommendation seems principally about enabling profit-making in secure children’s homes. There is no acknowledgement in the report of the chequered history of private companies running other locked establishments, including the serious abuse allegations at G4S-run Medway secure training centre, which have so far led to 11 arrests and the multinational selling its UK children’s business.

Second, there is a recommendation that the Department for Education, in consultation with Ofsted, “reconsider their guidance” about the use of physical restraint and locked doors in children’s homes. The guidance is presently very clear that there may be occasions when restraint can be lawful and justified to prevent a child leaving a children’s home. This advice is longstanding, and can be traced back to guidance on permissible forms of control in children’s residential care, dated 1993. That was introduced because of fear and uncertainty over discipline, following the abolition of corporal punishment in children’s homes in 1991. Recent guidance, like that issued in 1993, also makes clear, “The locking of external doors, or doors to hazardous materials, may be acceptable as a security precaution if applied within the normal routine of the home”. In a section on pedagogy, Sir Martin refers to Derbyshire children’s homes “apparently” reducing the use of physical intervention “to the point where they are said to have all but disappeared”. Article 39 hopes that any initiative by the DfE and Ofsted to examine the use of restraint and locked doors in children’s homes learns from positive, non-coercive practice. The Medway Improvement Board’s recent report on G4S-run Medway secure training centre will also be relevant, since it eloquently makes the case for moving away from coercion.

Third, the Review encourages local authorities and others “to be cautious about following any hard and fast rule about placement distance and to recognise that the right placement for a child is more important than location”. This sentiment is already reflected in law, so the risk is that this recommendation could undermine recent efforts to ensure children are placed as close to their home ties and communities as possible, when this promotes and safeguards their welfare.

Fourth, the Review accuses the Howard League for Penal Reform and the Prison Reform Trust of exaggerating the criminalisation of children in care. Sir Martin has undertaken some useful factual checks which indicate, for example, that the police are not always called out for misbehaviour but also for welfare reasons. However, we believe he missed an obvious and important opportunity to explore the potential for residential care staff having colleagues specifically trained in de-escalation to call in during crises, which could then avert police officers being brought to homes.

Finally, we are disappointed that Sir Martin has the impression that children’s rights are associated with “indulgence” and inexpert care. There is consistent acknowledgment in the Review of child abuse and mistreatment in residential care in the past. What is missing, however, is an awareness of the pivotal role that respect for children’s rights has played in transforming children’s homes from the often bleak, regimented and cruel institutions of the past to the positive, nurturing homes of today.