Labour unveils its plans

Government this week (18 November 2024) unveiled its plans for children’s social care through two key documents – a document presented to parliament called ‘Keeping children safe, helping families thrive’ and a letter to the Child Safeguarding Practice Review Panel outlining government action to date in response to the Panel’s review of the protection of disabled children and those with complex health needs in residential settings. That national review was established in January 2022 after a whistleblower alerted Doncaster Safeguarding Children Partnership to child abuse in a residential school run by the Hesley Group. In October 2022, the national review reported that children in three residential schools operated by the Hesley Group in Doncaster had “sustained, significant abuse and harm over an extended period of time [and the] voices of the children and young adults were not heard”. 

Article 39 responds below to the government’s main proposals and plans affecting children living in institutional settings. We have grouped key measures under our own headings:

• Government stalls critical measures to ensure the voices and concerns of disabled children are known and acted upon
• Lack of clarity on government’s position on care-less accommodation for looked after children aged 16 and 17
• Concerning plans for “a new type of accommodation” where children may be deprived of their liberty
• Risk of diluting local authority ‘corporate parenting’ role
• Stopping short of equal treatment for care leavers to stay in their settled homes
• Welcome suggestion that virtual school heads may support children leaving custody
• ‘Market’ interventions to tackle ‘excess profiteering’, rather than minimising profit-making in the children’s care system
• New powers for Ofsted to penalise unregistered / illegal providers
• New local authority duty for family group decision-making: where do children and young people’s voices fit? 

Government stalls critical measures to ensure the voices and concerns of disabled children are known and acted upon

In December 2023, the former government explained that the introduction of new national standards for advocacy services for children and young people, including a brand new requirement for non-instructed advocacy for disabled children and others who require this vital safeguard, would help ensure the perspectives of disabled children living in institutional settings are known and acted upon. The then government said it agreed with the Child Safeguarding Practice Review Panel’s conclusion “that it is possible that, if the children [living in the Hesley Group residential schools] had independent advocates, the harm they were experiencing would have been identified more quickly”.

The former government’s advocacy commitment arose from the Panel’s first of nine national recommendations that “all children with disabilities and complex health needs in residential settings should have access to independently commissioned, non-instructed advocacy from advocates with specialist training to actively safeguard the children and respond to their communication and other needs”.

A separate letter from the last government to chief executives of local authorities and integrated care boards, directors of children’s services and police chief constables (also in December 2023) stated that their regular reviews of child safeguarding arrangements should ensure “The right to advocacy for disabled children and children with complex needs, including those who use alternative or augmentative communication methods is respected”.

Against this background of serious and sustained sexual, physical and emotional abuse of disabled children, as well as what Article 39 considers to be institutional racism in the routine practice of shaving short black girls’ hair when they first went to live in the Hesley homes, it is unforgivable that the present government has proclaimed that “further consideration is required on the feasibility of this [advocacy] recommendation within the current budget”.

There are no other specific plans in the government’s wider children’s social care strategy for ensuring the voices of children and young people are heard. Similarly, there is no mention of, nor response to, the Independent Inquiry into Child Sexual Abuse’s (IICSA) recommendation that the Children Act 1989 be amended to give looked after children the power to apply to the court to make or change how their corporate parent exercises its parental responsibility. This is perhaps not surprising given so many of the plans announced this week are based upon the highly problematic Josh MacAlister review of children’s social care which omitted any analysis of IICSA’s published findings, and did not itself consider the extent and impact on children of child sexual abuse, including in institutional settings.

Lack of clarity on government’s position on care-less accommodation for looked after children aged 16 and 17

Despite a headline promising “expectations for residential care are clear and unambiguous”, the government’s children’s social care strategy does not unequivocally commit to all looked after children receiving care where they live.

Through a process of very controversial reforms introduced via secondary legislation and statutory guidance – which therefore bypassed parliamentary scrutiny – the last government sanctioned the provision of accommodation for children in care aged 16 and 17 where they receive no care where they live at all.

Two of four new official categories of care-less accommodation allow local authorities to house children in care aged 16 and 17 in shared properties with adult strangers (no upper age limit). The last government also failed to rule out caravans, boats and tents being part of Ofsted approved accommodation for children this age in care.

These hugely regressive reforms reversed developments in law and policy from the late 1990s which stressed that the children’s care system should emulate loving families; a goal with wide cross-party political support.

In 2019, in response to a BBC Newsnight investigation, the last government promised to regulate accommodation for children in care aged 16 and 17. At that time, 22% of children in care aged 16 and 17 lived in care-less accommodation. Article 39 believes this has now risen to around 50% of children in care aged 16 and 17 (based on official statistics published this month; we are awaiting a response to a freedom of information request).

Concerning plans for “a new type of accommodation” where children may be deprived of their liberty

The children’s social care strategy states the government “will amend primary legislation to provide a statutory framework for [local authorities] seeking to place children in a new type of accommodation, where they may be deprived of their liberty, but where the accommodation is not explicitly designed according to the same design specification as current secure children’s homes”. In addition, the strategy promises “clear criteria for when children may need to be deprived of liberty and mandatory review points to ensure that no child is deprived of liberty for longer than is required to keep them safe”. This is in response to many hundreds of children being deprived of their liberty each year through the High Court’s use of its inherent jurisdiction – a last resort backstop to protect individual children from significant harm when existing measures in legislation cannot come to their assistance.

Places in specialist secure children’s homes are not available for many of the children coming before the High Court. Ofsted reports that, “Around 50 children each day are waiting for a place [in a secure children’s home] and around 10 are placed by English local authorities in Scottish secure units due to the lack of available places in England”. In 2002, there were 29 secure children’s homes in England and Wales; there are now 13.

Article 39 welcomes the extension of statutory safeguards for children deprived of their liberty in circumstances currently falling outside section 25 Children Act 1989 – which allows a family court to make a secure accommodation order where a looked after child has a history of running away and they are likely to suffer significant harm if they run away, or the child is likely to injure themselves or others in any other type of accommodation. However, we are uncertain as to which looked after children currently deprived of their liberty through use of the High Court’s inherent jurisdiction would not fall under either of these categories. If places in secure children’s homes were available for them, they could – if they met the criteria – be the subject of a secure accommodation order. It may be that government envisages children being deprived of their liberty in this “new type of accommodation” without being looked after by a local authority, which would, of course, remove many other statutory safeguards. We await further information from government, and note that Ofsted has also expressed some caution.

We support the government’s vision for children’s secure settings having a flexible approach to restrictions – see ‘Principles and minimum expectations for children deprived of their liberty’ which we published in 2019 as part of our End Child Imprisonment campaign – but we do not see this as being incompatible with the positive development of secure children’s homes. If government has rejected the wider development and expansion of specialist provision, perhaps the new type of accommodation it envisages will, in reality, be so-called ‘solo placements’ where only one child lives in a property. Article 39 believes these arrangements are very rarely conducive to children’s happy and healthy development. They carry additional safeguarding risks due to the isolation of the child and the absence of others who could potentially raise the alarm on mistreatment.

Moreover, government has not indicated in its strategy whether it intends to rule out private providers from running this new type of accommodation. Of the 13 secure children’s homes currently open, 12 are run by local authorities and the remaining one is run by a charity. Amending primary legislation to allow private providers to run places of deprivation of liberty for highly vulnerable children in need would be a huge departure from long-established children’s social care policy.

Risk of diluting local authority moral and legal obligations as ‘corporate parents’

The children’s social care strategy states the government will “extend corporate parenting [legal] responsibilities to government departments and relevant public bodies to create a culture change in which we realise our shared ambition to support children in care and care leavers”. Article 39 does not support this move. In our evidence to the All-Party Parliamentary Group on Care-Experienced Children and Adults in October 2023, we explained:

With support from the Good Law project, Article 39 initiated novel wardship proceedings in 2023 to try and force government to find hundreds of very vulnerable children who had gone missing from Home Office-run hotels, and to then make sure they were looked after by local authorities. Our friends at ECPAT UK later secured a landmark High Court ruling that the Home Office had acted unlawfully in housing thousands of unaccompanied asylum seeking children in hotels outside of the children’s care system. It would be deeply retrograde for primary legislation to be amended to allow the Home Office to conceive of itself, and to be treated, as a ‘corporate parent’; the same applies to the Ministry of Justice’s prison service.

The whole notion of corporate parenting, from the 1990s onwards, has been focused on encouraging and expecting local authorities to treat care experienced children and adults as they would their own children. The statutory guidance issued to help local authorities implement the statutory corporate parenting principles explains that: “[The corporate parenting principles] describe the behaviours and attitudes expected of councils when they are acting as any good parent would do by supporting, encouraging and guiding their children to lead healthy, rounded and fulfilled lives… This will assist in securing that such children and young people are not placed at significant disadvantage when compared with the support a non- looked after child or young person may receive from their family”.

Despite our strong opposition to corporate parenting principles being extended to government departments and other public bodies, we support the proposal for government progress reports on corporate parenting, though the three-year frequency seems too long. Given the various inter-linked crises in the children’s care system presently, we recommend that this should be an annual government publication in the first instance.

Stopping short of equal treatment for care leavers to stay in their settled homes

In 2014, the law was changed to require local authorities to provide advice, assistance and support to children in care who continue to live with their foster carers from the age of 18 up to 21 years. This policy is called ‘Staying Put’. (However, there is no duty to continue supporting foster carers through fostering allowances, and they are no longer officially the young person’s foster carer).

The move to allow children to remain (‘stay put’) in their foster home beyond the age of 18 reflects ordinary family life, where ‘adult children’ continue to live at home until at least their mid-twenties. Nevertheless, the Staying Put entitlement was not extended to children living in children’s homes who similarly experience ejection from their homes long before they are ready to leave.

Staying Put’s discriminatory application was the catalyst for a national campaign called ‘Every Child Leaving Care Matters’, and an online petition attracting more than 16,000 signatures.

For children living in children’s homes, the last government explained in 2016 that it would introduce ‘Staying Close’ in order to “enable young people to live independently, in a location close to their children’s home with ongoing support from that home”.

The children’s social care strategy this week promises ministers will “legislate to ensure all local authorities consider whether each former relevant child (up to age 25) in their area requires a package of support known as ‘Staying Close support’ and if their welfare requires it, provide that support”.

Article 39 welcomes the government’s recognition that it is wrong to force or expect young care experienced adults to leave the communities and areas in which they have laid down roots. Through our advice service, we hear often of young people aged 18 and older being told they must return to their home local authorities after they have become settled in a different local area following their corporate parent moving them there when they were children. We consider this routine disruption to children and young people’s family life and attachments to be a systemic breach of their rights under Article 8 of the European Convention on Human Rights.

We await further detail: on first reading, the Staying Close plans appear to perpetuate the differential treatment of children in care according to where they live – with the best (though imperfect) arrangements reserved for those living in foster care. Moreover, any new duties must give clear entitlements to young people rather than leave this to the discretion of local authorities who, in our experience, will be likely to assess young people as not requiring Staying Close support – as a means of financial rationing and because, in our experience, they frequently fail to understand and embrace their parenting responsibilities towards care experienced adults.

Furthermore, there is an existing legal duty in the Children Act 1989, which requires local authorities to provide assistance to care leavers to the extent that their welfare requires it. Article 39 frequently encourages advocates to invoke this duty when supporting care leavers in desperate situations. Before independent advocates are involved, we often find that local authorities are either unaware of, or unmoved by, this clear statutory duty. But it does work to remedy uncaring and neglectful treatment.

Welcome suggestion that Virtual School Heads may support children leaving custody

Article 39 very much supports the government’s openness to extending the statutory role of Virtual School Head to children leaving custody. Virtual School Heads champion the educational achievement of looked after children, and those who were formerly looked after (including children who are now the subject of a special guardianship order or an adoption order).

There are strong arguments for proactive support around children’s educational achievement to apply on entry to custody given the very high proportion of children in custody who have been excluded, or have otherwise suffered educational disadvantage or discrimination.

We also welcome government plans to extend the local authority duty to promote educational achievement to children who are living with kinship carers and/or are the subject of child in need plans or child protection plans. As the strategy makes clear, in practice these new obligations are likely to be discharged by Virtual School Heads.

‘Market’ interventions to tackle ‘excess profiteering’, rather than minimising profit-making in the children’s care system

The children’s social care strategy outlines a number of proposed measures which aim to curb ‘excessive profiteering’, including:

• Continued government capital investment for children’s homes run by local authorities (£90 million announced in the Autumn 2024 Budget for 2025/26 intended to provide 200 extra places in local authority-run children’s homes);
• Strengthening the ‘location assessment’ carried out by Ofsted when providers apply to register a new children’s home, in order to “give local authorities a greater say on the type and quantity of provision they need in their area”. Currently there is a proliferation of children’s homes run for profit in the North West of England due to the relatively lower property prices in that area;
• Government working “with providers, investors, and the sector at large to support them with innovative funding mechanisms – for example, social financing models like social outcomes partnerships – to break down barriers to setting up new residential care”;
• Government working “with the sector to bring about greater cost and price transparency which will aid local authorities in challenging profiteering providers, as well as enabling greater central government oversight of the placements market”;
• Legislation to “enable” (there is no suggestion that this will be mandatory) local authorities to form Regional Care Co-operatives in partnership with health and justice bodies to help councils, among other things, fulfil their statutory duty to have sufficient homes for looked after children, and for children who need to be looked after;
• A new scheme run by the Department for Education whereby ‘difficult to replace’ providers are required to provide financial information, so that serious financial problems may be predicted;
• Private providers to be required to have a “contingency plan with assurances that [they] have the appropriate cash reserves … to enable orderly transitions to new ownership, or to wind down operations in a well-planned manner if they need to exit the market”. (NB It is not clear if this would apply to all private companies or only those deemed ‘difficult to replace’);
• In the case of businesses choosing “to actively exit the market” for commercial reasons, the government states it “will explore introducing a new requirement for all providers to give both hosting and placing local authorities sufficient notice”. This “advance warning system” would, it is envisaged, enable local authorities to meet their statutory duties towards looked after children who are about to lose their home;
• Education Secretary to be given legal power “to cap the level of profit which can be made from children’s social care placements through secondary legislation in the future”. The strategy states government, “will allow time for our other market reforms to rebalance the market first and will only step in to cap profits if this does not happen”.

Article 39 welcomes the clear acknowledgment by government that the current operation of England’s children’s care system, where profit-making dominates, is deeply detrimental to children. However, we are very disappointed that the mixture of proposals appears to be directed at ameliorating some of the worst effects of privatisation on very vulnerable children, rather than signalling major change.

In November 2022, Article 39 published its policy position on profit-making in the children’s care system, summing up that:

In May 2024, a Bill was introduced into the Welsh Parliament which makes local authority foster homes and children’s homes the default position for looked after children in Wales, if a looked after child cannot live with their parent, someone else with parental responsibility or another person who has formerly obtained an order from the family court. The Bill has an exception process whereby not for profit providers and profit-making companies can be approved by the Welsh Government in individual circumstances where this is necessary to safeguard or promote a child’s welfare (see Clause 13 of Bill here). Article 39 urges the UK Government to be similarly bold in its plans, since tinkering with the so-called market is very unlikely to achieve the transformation in children’s care and protection ministers palpably seek.

New powers for Ofsted to penalise unregistered / illegal providers

The children’s social care strategy proposes to give Ofsted the power to use civil proceedings to fine providers who operate unregistered (illegal) settings.

Ofsted is already empowered to undertake criminal investigations and prosecute providers in breach of statutory requirements. Presently unregistered providers can be subject to a criminal prosecution after a compliance notice has been served by Ofsted. Ofsted can also currently serve a notice on establishments operating illegally which stops them having new children come to live there. (See Part II of the Care Standards Act 2000 for current enforcement powers and penalties).

Between April 2023 and end March 2024, Ofsted opened 1,019 investigations into children’s homes that were potentially operating illegally because they were unregistered. It found that 87% of these homes should have been registered, and were therefore operating illegally. Of these, 64% were sent Ofsted warning letters, and 44% subsequently closed. The Observer newspaper reported earlier this year that “Ofsted did not prosecute a single provider in 2022-23, despite launching 845 investigations into suspected illegal children’s homes”.

Statistics published this month suggest that significant numbers of care-less accommodation providers (where children in care aged 16 and 17 live) are operating illegally, and that Ofsted and the Department for Education are aware of this (as stated above, we are awaiting a response to a freedom of information request).

Article 39 supports Ofsted having the widest range of civil and criminal enforcement powers matching those of the Care Quality Commission. However, there needs to be far greater scrutiny (beyond media investigations) of Ofsted’s apparent reluctance to date to launch criminal prosecutions against providers operating illegal children’s homes, the majority of whom are likely to be profit-making.

New local authority duty for family group decision-making: where do children and young people’s voices fit?

In the foreword to the children’s social care strategy the Education Secretary, Bridget Phillipson MP, states the government’s “priority is to keep families together. But for some children, at certain times, the safest place to be is in care”.

Article 39 strongly supports a sharper local authority focus on supporting families and avoiding children’s separation from loved ones whenever possible. This includes actively supporting children in care to return to live with their families whenever this is safe and consistent with the child’s expressed views, wishes and feelings. For this to happen, families require substantially more direct financial assistance from the state – social security in its truest meaning – and family support services must be properly resourced and effective, based on what children and their families say helps them the most. Notwithstanding this, there will always be a very significant number of children for whom the state takes on the parenting role. This is one of the state’s most precious functions.

The average time in care for those ceasing to be looked after in the year to 31 March 2024 was 864 days – more than 2 years, 4 months. This is a considerable period of time for a child. Nearly three-quarters (72%) of children ceasing to be looked after had been in care for at least six months; 1,780 children had been in care for 10 years or more.

However long a child is looked after by the state, they must receive the best possible care, protection and support. To this end, Article 39 regrets that the government did not this week publish a standalone strategy for the children’s care system, incorporating support for care experienced adults.

Government intends to introduce a new duty on local authorities to offer a ‘family group decision-making meeting’ “at the pre-proceedings stage” to establish whether there is anyone within the child’s wider family or other networks who could look after them. We assume this means the duty will apply only to children for whom a local authority is considering applying to the family court for a care order, due to the child suffering, or being at risk of, significant harm. It will be essential in such circumstances to ensure children have access to independent advocacy to ensure their views and perspectives are properly understood and taken seriously, and they are not pressurised or coerced to live with family members or others with whom they don’t feel safe or genuinely wanted.

In addition, Article 39 considers that a specific duty on local authorities to support care experienced parents in their parenting role would also be necessary, so as not to put care experienced families without networks at a disadvantage.

As for children accommodated on a voluntary basis (in the absence of care proceedings), Article 39 hears time and time again of teenagers, especially those aged 16 and 17, being pushed away by local authorities when they have been ejected from the family home, or are desperate to leave their family homes in order to escape violence. We have heard of teenagers essentially being threatened that if they come into care they will be moved many miles away from their home area, having to leave their friends, place of education and everything they know. Reporting themselves as homeless to housing departments is, we find, often presented by local authorities to 16 and 17 year-olds as a better option than coming into care because, they are told, they will have more ‘freedom’. It is our experience that local authorities frequently seek to avoid their legal responsibilities to look after teenagers without a home and parental care because they don’t have homes for children, and they wish to avoid later care leaver obligations.

It will be essential when finalising this ‘preventing care’ legal duty for government to hear directly from children and adults who were kept out of the care system when this wasn’t in their best interests. The perspectives and expertise of local authorities and organisations representing parents are very important, but it is also vital for government to fully understand the short and long-term impact for children of being forced to remain in families where they feel fundamentally unsafe and unheard.