Children's Wellbeing and Schools Bill - Article 39's initial analysis

Although not promised in its November 2024 policy document Keeping children safe, helping families thrive, it is once again astonishing that a Bill about child protection does not repeal the ‘reasonable chastisement’ defence available to parents and others who have been arrested and charged with the assault of a child.

The common law ‘reasonable chastisement’ defence arises from a criminal case in the Victorian era (1860), R v Hopley, where a headteacher was found guilty of the manslaughter of a 13 year-old child with learning difficulties. The judge instructed the jury that if it considered the headteacher, who had beat the child with a stick for more than two hours, had gone beyond moderate and reasonable physical punishment it should find him guilty. Chief Justice Cockburn said:

By the law of England, a parent or a schoolmaster (who for this purpose represents the parent and has the parental authority delegated to him), may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted beyond the child’s powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law, and if death ensues it will be manslaughter … The stick with which the punishment was inflicted was not (though that, may be, is matter for you to determine) an instrument fitted for the purpose of chastisement. And the beating was manifestly protracted far beyond the bounds of reason, moderation or humanity. If you think that it was so, and caused the death of the boy, find the prisoner guilty.

As respect for children’s physical and mental integrity has grown, the defence has been removed in a variety of children’s settings – state schools (1986), children’s homes (1990), independent schools (1998), fostering (2002), early years (2003) – but it remains available for parents charged with the assault of a child. It has also not been removed from part-time educational settings (including those operated by religious organisations), children’s health settings or supported accommodation for looked after children aged 16 and 17. The idea that it can be legitimate to inflict physical violence to correct “what is evil in the child” is anathema to children having equal dignity and worth to adults, as proclaimed in Article 1 of the Universal Declaration of Human Rights 1948. Ever since the UK ratified the United Nations Convention on the Rights of the Child (UNCRC), in 1991, the Committee on the Rights of the Child has consistently urged law reform.

Yesterday, 10 year-old Sara Sharif’s father and stepmother were sentenced for her murder. When Sara’s father rang Surrey Police, in August 2023, to inform them he had killed his daughter, his words echoed those of the judge in the 1860 Hopley trial. Sara’s father told police he had “legally punished” Sara before she died, and “I beat her up … I beat her up too much”. It was later revealed that he had signed agreements with social workers in 2013 and 2015 not to physically chastise Sara. The truth is the law was on the father’s side – because it reinforces the view that children are the property of their parents and can be hit by them, so long as they don’t go too far.

Sentencing Sara’s father, Mr Justice Cavanagh said:

As for your motives, Urfan Sharif, for your beatings and other abuse of Sara, you treated her in such a way because you considered it to be your right to impose harsh discipline upon her. Sara was a brave, feisty and spirited child. She was not submissive, as you wanted her to be. She stood up to you. You considered that her behaviour entitled you to chastise her physically, and I have no doubt that your ego and sense of self-importance were boosted by the power that you wielded over her and the rest of the family. In fact, Sara was not particularly badly behaved. She was a normal child of her age. The beatings began when she was 6 or 7. Sara never did anything that might conceivably have justified any part of the treatment that she endured.

It is not unusual for governments to table amendments to Public Bills shortly after their introduction, to remedy drafting oversights. The removal of this disreputable defence that allows parents and others to imagine there are forms of physical violence which are legitimate if the victim is a child must be an immediate priority. Nearly 70 states plus the nations of Wales and Scotland have given children the same legal protection from assault as adults. We must be next.

Article 39 is deeply concerned about the widening of statutory places of deprivation of liberty for looked after children. Clause 10 provides that looked after children may be “kept in relevant accommodation” if they meet the criteria for deprivation of liberty already in section 25 of the Children Act (the same archaic ‘absconding’ terminology has been retained). The only description of “relevant accommodation” provided in the Bill is that its purpose is “to provide care and treatment of children”, and that it “is capable of being used (in whole or part)” to deprive children of their liberty.

In the absence of any public consultation or detailed published plans, government intentions may only become clear when it introduces secondary legislation. One obvious question is whether private companies will be allowed to operate relevant accommodation / places of confinement under the Children Act 1989. The vast majority (83%) of children’s homes are run for profit, so this appears likely. Child prisons were partly privatised from the late 1990s onwards, and child mental health inpatient care is largely privatised, but never before has child welfare legislation allowed profit to be made from locking up highly vulnerable children.

It is also not clear whether ministers will use secondary legislation to legitimise the growing tendency for children to be kept in properties on their own, with three or four staff members monitoring them at all times, an inherently oppressive arrangement which denies them the ordinary markers of a happy childhood.

Currently only secure children’s homes are used to deprive children of their liberty under section 25 of the Children Act 1989. The number of these specialist, multi-disciplinary homes has reduced considerably, from 29 in 2002 to 14 today. All except one are run as part of local authority children’s services; the remainder is run by a charity. Secure children’s homes are inspected at least twice a year.

As effective support for children and their families, and the availability of safe and suitable homes for looked after children, have contracted, increasingly the High Court has been relied upon to make ‘last resort’ orders to deprive children of their liberty in ad hoc arrangements – including in caravans, rental properties and hotel rooms.

Judges have been sounding the alarm for over 15 years that there are not enough specialist forms of accommodation for children with profound needs and in acute states of distress. The courts have sent their judgments to government ministers, the Chief Social Worker for Children and Families and the Children’s Commissioner for England, in an effort to propel policy makers and the Treasury into action. The former Education Secretary, Gillian Keegan, was even directed in November 2022 to send a representative to explain the then government’s position on the provision of secure accommodation. It was the President of the Family Division who heard the case at its next hearing, observing that:

My view, expressed during the hearing, was that the stance taken by the Department for Education, to the effect that it was not its problem and was the responsibility of individual local authorities, displayed a level of complacency bordering on cynicism. 

Like the shameful development of care-less accommodation (supported accommodation for looked after children aged 16 and 17), this appears to be government policy driven by crisis and failure to properly fund child welfare services. Allowing large numbers of providers to have parts of buildings operating as places of confinement is reminiscent of children’s homes of the 1980s and before – where locked annexes and seclusion rooms were used as a form of control and punishment (see, for example, the ‘Pindown’ regime in Staffordshire children’s homes in the 1980s). We understand the imperative for government to act but see significant danger in what has been put into the public domain to date.

Article 39 welcomes the amendment to the Children Act 1989 requiring local authorities to offer a family group decision-making meeting to parents and others with parental responsibility prior to making an application for an order under section 31 of the Children Act 1989.

However, we are alarmed that Clause 1 omits any requirement for the local authority and family network to give due consideration to the child’s wishes and feelings when making decisions; there is only a duty on the local authority to “seek the views of the child unless it considers that it would not be appropriate to do so” (subsection (9)). This is inconsistent with the Children Act 1989, which requires local authorities to ascertain and give due consideration to the child’s wishes and feelings in a variety of contexts, including child protection, children in need assessments, and before making any decision about looked after children.

Successive inquiries into the deaths of children consistently show that the individual child’s perspective was lost, with professionals focused on adult narratives and concerns. Without amendment to put the child’s perspective firmly at the centre, we fear this new statutory mechanism for avoiding children coming into care will put children at risk. Through our advice service and work with independent advocates we hear time and time again of teenagers desperately unhappy and frightened at home being pushed away by local authorities in the name of keeping families together. Children in these circumstances have often suffered abuse and neglect over many years, as shown by a 2020 Child Safeguarding Practice Review Panel review obtained by Article 39 after successfully challenging government secrecy at an information rights tribunal.

It is vital that the legislation incorporates both children’s wishes and feelings, since feelings are far wider in scope. Seeking to understand children’s feelings will ensure that younger children, and children who choose not to express their views on where or with whom they would like to live, or who are deemed not to have capacity to influence a particular decision, remain central to decision-making.

In a similar vein, subsection (8) contains a very weak provision that a child may attend the family group decision-making meeting “when the local authority considers it appropriate”.

Given family group meetings will be making critical decisions about a child’s safety and home life, there must be clear entitlements for the child to participate, including with the assistance of an independent advocate, for Clause 1 to be compatible with Article 8 of the European Convention on Human Rights and Articles 12 and 3 of the UNCRC. The Committee on the Rights of the Child’s guidance on implementing Article 3 of the UNCRC, the best interests of the child, is clear that the child’s perspective must be at the heart of this.

Clause 7 places a new duty on local authorities to assess whether the welfare of a ‘former relevant child’ (an adult who spent at least 13 weeks in care starting when they were aged 14 and lasting at least a day beyond the age of 16) requires them to receive “staying close support”.

The nature of this staying close support is rudimentary, with subsection (4) listing support “to find and keep suitable accommodation” and “to access services relating to health and wellbeing, relationships, education and training, employment, and participation in society”. Support is defined in subsection (5) as “the giving of advice or information” and “the making of representations”. This does not take the rights of care leavers beyond what is already in law, namely the Children Act 1989, The Care Leavers (England) Regulations 2010 and the corporate parenting principles in the Children and Social Work Act 2017.

There is no duty in Clause 7 for the young person’s perspective to be elicited or given any weight in the local authority’s assessment of whether they need staying close support; the power to determine whether support is required, and then to decide the nature of this support, all rests with the local authority.

Moreover, there is no provision in Clause 7 that gives care experienced adults any entitlement whatsoever to remain living close to the home or homes they lived in as a child in care. There is no duty on local authorities to provide assistance, including financial assistance, to maintain a ‘staying close’ arrangement, as there is within section 23CZA Children Act 1989 for children wishing to ‘stay put’ in their foster homes between the ages of 18 and 21.

Clause 8 adds new requirements to the content of local authorities published ‘local offers’ for care leavers, which set out the services and support available to them until age 25 and beyond. (The duty to publish a local offer for care leavers was introduced through section 2 of the Children and Social Work Act 2017).

Local authorities will have to set out their arrangements for “supporting and assisting care leavers in their transition to adulthood and independent living”, and their arrangements around helping care leavers find and keep suitable accommodation and avoiding homelessness.

There are no new rights and entitlements for adult care leavers in relation to the provision and funding of housing, or being able to stay in the area their local authority moved them to as a child in care.

Article 39 further regrets that the government has omitted to introduce a statutory presumption that children will remain looked after until at least the age of 18. When last in power, the Labour Party introduced statutory provisions making it harder for local authorities to cease looking after children before the age of 18, but this has not stopped the local authority practice of expecting children aged 16 and 17 to prepare for adult life by living alone with minimal adult support and guidance. Indeed, the regulation of care-less accommodation (supported accommodation for looked after children aged 16 and 17, where they receive no day-to-day care) has significantly increased the neglect of teenagers in care.

Through Clause 19, government has elected to extend protections relating to the ill-treatment and wilful neglect by care workers in adult social care to children aged 16 and 17 living in certain settings, including children’s homes, care-less accommodation (supported accommodation where children this age receive no day-to-day care), and child prisons. On initial analysis, this appears to be the further deliberate ‘adultification’ of teenagers.

An amendment instead to section 1 of the Children and Young Persons Act 1933, the offence of cruelty to children under the age of 16, would have provided significantly greater protection for 16 and 17 year-olds, as well as kept them within the frame of child protection.

Article 39 welcomes the power given to the Secretary of State in Clause 14 to limit the profit-making of children’s homes providers and fostering agencies. However, we deeply regret the omission of care-less accommodation providers (90% of those first registered by Ofsted are run for profit), since this is a burgeoning market undoubtedly encouraged by the last government’s deliberately lax regulation.