Article 39’s response to the Department for Education’s consultation on children’s social care implementation strategy – May 2023
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 over 400 members working directly with children and young people in a variety of settings. Our ON YOUR SIDE advice service provides legal information 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 (UNCRC), which entitles children who have suffered rights violations to recover in environments where their health, self-respect and dignity are nurtured.
Our response to Stable homes, built on love
We have focused on the areas of the proposed strategy and the consultation questions which fall within our priorities, work and expertise.
Overall, to what extent do you agree these six pillars are the right ones on which to base our reforms for children’s social care
With others, Article 39 sought to persuade the children’s social care review to use the United Nations Convention on the Rights of the Child (UNCRC) as its framework for assessing the extent to which children’s social care currently meets the needs and upholds the rights of children and their families, and for making recommendations for change. Critically, this would have shone a spotlight on the responsibilities of central government to ensure our social security system keeps children out of poverty and that universal and specialist services for children and their families are effective and properly funded and supported. We maintain that the UNCRC is the best framework for transforming children’s social care.
Pillars 1 and 3 (‘Family Help provides the right support at the right time so that children can thrive with their families’ and ‘Unlocking the potential of family networks’)
We strongly support the emphasis on families being able to access positive, non-stigmatising help from children’s social care at the point when this is needed, and for as long as it is needed (Pillar 1). This is already enshrined in section 17 of the Children Act 1989 whose implementation has never been properly funded by successive governments. We also agree that local authorities and other agencies must show far greater respect and commitment towards children’s wider family networks (Pillar 3), both when it is clear that children cannot safely remain at home with their parents and when children have entered the care system and could, with the right support, thrive in the care of other relatives or family friends.
It is already the case that legislation prioritises children living with family members when they cannot safely remain with their parents, though the only route for secure financial (and other) support is for family members to become approved foster carers. Without substantial new resources for families, and for local authorities and other agencies, the obvious risk is that families who are struggling will be left without vital support. Added to this is the need to be realistic about children’s lives, and the reasons beyond poverty that children come to rely on those outside their families to protect and nurture them. We are concerned that a generic focus on families, and a narrative that implicitly (and sometimes explicitly) portrays growing up in care as always second best, may lead to older children especially being left to tolerate environments, treatment and relationships which harm them. Local authorities and professionals must listen very carefully when children communicate, in words and/or behaviour, that they do not feel safe or respected at home.
It is vital that statutory safeguards are put in place to ensure the child’s perspective is known and understood within the context of policy development around family networks. Research by Just for Kids Law shows that teenagers in desperate need are already consistently turned away from the care system, and sent down the route of homelessness support, because of local authority reluctance to fulfil their statutory obligations towards them now, as children, and into their early adult lives as care leavers. Such children do not appear on ‘looked after children’ statistics but it would be wrong for their local authorities to be credited with positively diverting them from state care. We ask government to be mindful of what can happen to older children who are told they must reconnect with their families when they feel that this is impossible, or to embark on living alone while still a child – sleeping on different friends’ sofas month to month; moving between family members in varying degrees of conflict and instability; and spending their final, formative childhood years without close, consistent care, affection and guidance housed in accommodation designed for homeless adults.
Article 39 has been seeking a safeguarding report from the Department for Education, which analysed 48 separate incidents of children in care who died or suffered serious harm. One of the key findings of this report (which remains unpublished) is that, “children were coming into care in adolescence having experienced long-term parental abuse and neglect, with significant trauma”. Over half of the children who entered care in the year to 31 March 2022 were aged 10 to 17 years; there was a 38% rise in 16- and 17-year-olds entering care from the previous year. Policy commitment to supporting families is vital and necessary. However, this cannot be at the expense of state intervention when this is necessary to protect children and help them recover from harm. Parliament’s Education Select Committee reviewed the educational experiences of children living in residential care and reported in 2022:
We heard that the rise [in the number of children in care] does not mean the state is being over-zealous in removing children from their birth families and bringing them into care. Ofsted told us that while “There is a delicate debate about state intervention in family life”, local authorities are not intervening unnecessarily, and assured us “The threshold is not too low”. Indeed, as the Children’s Commissioner pointed out, given the rise in older children entering care, thresholds are “clearly too high if the first intervention is late”.
It seems to us that some children’s services leaders have become desensitised to the needs of teenagers. It is shameful that nearly 15 years since the UK’s (then) highest court held that teenagers estranged from their families require much more than a roof over their head the Association of Directors of Children’s Services continues to bemoan the impact of the Southwark judgment on the numbers of 16- and 17-year-olds entering local authority care. A House of Lords ruling that highly vulnerable children should be properly looked after is not the cause of older children turning to their local authorities for parenting.
Pillar 2 (‘A decisive multi-agency child protection system’)
Instead of a headline focus on decisive multi-agency action, we would prioritise reshaping the child protection system in four main ways:
- Ensuring that individual children’s lives and experiences are known and understood
- Positively communicating to children that they have the right to be and feel safe wherever they live
- Making children’s recovery from harm a central goal of the child protection system
- Ensuring that children in care and living away from home in other settings receive equitable treatment when they report abuse and raise concerns, and that those investigating known or suspected harm understand the particular safeguarding risks of institutional settings
Systemic failures to hear directly from children, and to understand what life is like for them, permeate investigations and inquiries when children have died or suffered serious harm. This applies to children in all settings and across different age groups. Yet addressing the invisibility of children within child protection processes and systems has never gained the same national traction or policy priority as improving information-sharing and effective professional relationships. To truly transform child protection, the lives and wishes, feelings and perspectives of children must be uppermost. We deeply regret the absence of any specific proposals to improve the communication skills of professionals working with children, and ask that government looks again at the importance of independent advocacy for children within child protection. Current child protection advocacy proposals attend only to the needs of parents. We strongly support this and seek equivalent policy and funding focus on children’s independent advocacy in child protection. Adults have comprehensive rights to independent advocacy throughout adult safeguarding processes; similar entitlements within child protection must be available for children, with tailored provisions for those living in institutional settings where there is an ever-present risk of coercive, closed cultures developing.
Further, we urge the government to remove the 1860 common law defence which parents are able to rely upon when charged with assaulting children. This fundamentally undermines child protection and has no place in a modern society that respects children as individual people with the right to psychological and physical integrity. There is no other group of people for whom English law says a certain degree of violence is permissible.
Pillar 4 (‘Putting love, relationships and a stable home at the heart of being a child in care’)
We strongly support the emphasis on children in care feeling loved and that they matter and belong (Pillar 4). However, the dire state of the children’s care system demands a serious, cross-government commitment to children in care with concomitant resources and high profile, strategic national and local roles. A transformation in the children’s care system requires major cultural and structural change with new statutory parenting leadership roles within local authorities. Local authorities are required to appoint Virtual School Heads to doggedly promote children in care’s educational opportunities and achievements, yet there is no equivalent senior statutory postholder who is ultimately responsible for ensuring the needs of each child in care are met, and their rights fulfilled.
Central government needs to be far more engaged in challenging and supporting local authorities to fulfil their obligations towards children in care: there may be a role here for a new non-departmental public body. Following revelations that disabled children had suffered serious and sustained physical, emotional and sexual abuse in three residential special schools and registered children’s homes run by the Hesley Group in Doncaster, local authorities were asked to complete surveys by the Child Safeguarding Practice Review Panel. 43 of the 55 local authorities who had arranged and paid for children to live at the homes reported to the Panel that they had concerns about the treatment of children there. Yet it was the actions of a whistleblower in 2021 that led to the homes closing and to South Yorkshire Police investigating crimes committed against highly vulnerable children. It is barely believable that so many safeguarding arrangements failed children living in these Hesley Group homes when the UK’s largest public inquiry, the Independent Inquiry into Child Sexual Abuse, has recently completed seven years’ worth of investigations into the mistreatment of children across all types of institutions. The proposals in ‘Stable homes, built on love’ for improving the children’s care system have the potential only to cause ripples in a dysfunctional system, when radical transformation is necessary. We welcome the goal of ‘world-class’ (corporate) parenting but cannot see how the strategy as currently formulated will achieve this.
Through our advice service and work with independent advocates we regularly hear shocking accounts of neglectful and sometimes cruel ‘parenting’ by local authorities – recent examples include: moving children who are settled at home and school; instructing children to register as homeless on their 18th birthday; and refusing to investigate complaints of sustained abuse in care because the statutory time limit has passed (even though there is discretion to proceed). Far too often we witness children in care having to fight for their basic needs as children to be recognised and met, and there remains far too little organisational compassion, understanding and patience towards children and young adults whose lives have been punctuated by abuse, trauma and isolation which is then reflected in their behaviour. Skilled therapeutic help must be available as of right for children in care and adults who were formerly in care. Article 39 strongly supports recommendations from the Care Experienced Conference for policy makers to recognise that the experience of being in care is a life-long process, and removing artificial cut-off points based on age. We need a care system that is fit for the people it is meant to serve.
It is not clear to us what kind of parent the government is aiming to be, or even that government sees itself as having parental obligations towards children in care, when:
- Local authorities across the country do not have sufficient homes for children in care.
- Hundreds of highly vulnerable children are being deprived of their liberty in ad hoc arrangements due to a chronic, nationwide and extensively documented shortage of secure accommodation (which should be seen and invested in as a fundamentally important element of a fit-for-purpose children’s social care system). In January 2023, in a judgment about an individual child, the President of the Family Division of the High Court issued an extraordinary and comprehensive critique of the “substantial deficit” in secure accommodation and reiterated that, “very senior judges have, for over six years, been consistently calling for Parliament and government to acknowledge the need for action to address the gross lack of registered secure accommodation units”.
- Amendments to the Children Act 1989, making it easier for local authorities to send children in their care to Scottish secure units, were described as stopgap, emergency measures when introduced five years ago. This practice of sending children in the care of English local authorities to Scotland to be deprived of their liberty has now become normalised.
- For the first time national government has authorised Ofsted to register bedsits, shared housing with adult strangers, caravans and boats as regulated placements for children in care. Ministers have confined this to children aged 16 and 17 by (apparently) convincing themselves that this age group is able to live safely and to thrive without any day-to-day care and consistent adult supervision. The government narrative that accommodation devoid of care can be suitable for ‘some’ teenagers is shameful in its failure to acknowledge that 7,470 children in care aged 16 and 17 live in such settings (37% of this age group – March 2022 data), a 5% increase on the previous year. Ten years ago, in March 2012, 7% of 16- and 17-year-olds in care were living in care-less accommodation. Through secondary legislation and statutory guidance, the government has normalised the absence of care for children in care.
- Since July 2021 the Home Office has been housing children in hotels when they arrive in the UK having made terrifying overnight journeys across the Channel on flimsy boats. The Children Act 1989 requires that local authorities look after children in their area who are abandoned or otherwise without parental care. This so-called emergency government measure has continued for almost two years. Moreover, the Home Office is now seeking – through the Illegal Migration Bill – to have the statutory power to accommodate vulnerable children who would formerly (prior to this Bill) have been the legal responsibility of local authorities, to lock up children as a measure of immigration control and to override local authorities’ care of individual children. The Bill empowers the Home Secretary to direct that a local authority ceases to look after a child within five working days. No other government minister is able to override the parental obligations of local authorities towards individual children; presumably this power is intended to also nullify care orders made by the family court.
- Profit-making has been allowed to become a dominant feature of the children’s care system. It is now commonplace for children to be sent many miles away from their families, friends, communities and the local authorities that are legally responsible for their care, safety and well-being. The country’s most vulnerable children, who have already suffered tremendous loss and instability, are knowingly and routinely exposed to the vagaries of the market – being forced to move when businesses collapse, when their local authorities have found cheaper arrangements elsewhere (this includes children being told they have to move from settled homes where they receive care to care-less accommodation as they approach their 16th birthdays), and when a provider insists that they are moved knowing that there are many more children (and fee-paying local authorities) in desperate need. Children in care have far less legal protection from losing their homes than families served with eviction notices by rogue landlords.
The children’s care system should be accorded the highest political priority at both national and local government levels. We strongly support the Independent Inquiry into Child Sexual Abuse’s recommendation for a Cabinet Minister for Children but this will not be sufficient without clearly defined duties. An overarching duty to secure the rights and well-being of children together with an enduring commitment towards them in adulthood should be supplemented by specific obligations related to funding, national planning for specialist group-based care and workforce education and development. We advocate an annual report to Parliament on the extent to which the children’s care system is fulfilling its parenting obligations towards children and adults who were formerly in the care of local authorities.
Pillar 5 (‘A valued, supported and highly-skilled social worker for every child who needs one’)
We support the ambition that every child who needs a social worker has one, and that every social worker is valued, supported and highly skilled (Pillar 5). However, this is not enough – social workers must have knowledge and understanding of child development, children’s rights and the impact on children of abuse, neglect, trauma and loss. They must be able to champion the needs and rights of children within their organisations, and have the professional standing and confidence to refuse to implement policies and senior manager instructions which they know to be harmful to children. We propose the introduction of statutory Codes of Practice for children’s social care, akin to Police and Criminal Evidence Act 1984 Codes of Practice which govern the actions of police officers and others. These would clearly set out, in one place, professional requirements and expectations and the rights of children and families in a variety of contexts, including child protection, the children’s care system and support for families. We would also like to see new ways of social workers being supported – through salary structures and delegated decision-making – to maintain continuity in their relationships with children in care, and adults who were formerly in care.
Pillar 6 (‘A system that continuously learns and improves, and makes better use of evidence and data’)
We support the collection and publication of key data in children’s social care, which captures the extent to which public authorities (including central government departments) are fulfilling their obligations towards children and families. But this has to bring about change in children’s lives.
Government already holds a huge amount of data which sounds the alarm on children’s well-being and rights, though this has not brought about the requisite changes in national policy – the obvious example being official households below average income statistics which show that 4.2 million in the UK now live in poverty. Data collected and published by the Department for Education signals that the number of secure accommodation places reduced from 300 to 249 across the past decade. Beyond transparency, which is of value in itself, these statistics have not come to the aid of children. Similarly, at a local level, only 63% of English local authorities reported to the Department for Education last year that care leavers aged 17 were living in suitable accommodation, down from 68% in 2021. Information was not supplied for nearly a third (31%) of teenagers aged 17. What are the consequences, if any, for local authorities who routinely tell central government they don’t know where the children they once looked after are now living?
The Department for Education suggests that NHS data collection could be a model for children’s social care to emulate. Our work supporting children and young people who have experienced mental health detention, and knowledge of successive neglect and abuse scandals in those settings, has underlined the limitations in current NHS Digital data dashboards. A ‘rapid review’ was set up by government “to improve the way data and information is used in relation to patient safety in mental health inpatient care settings and pathways, including for people with a learning disability and autistic people”. We have submitted proposals for lots of new data collection – relating, for instance, to restraint, strip-searching, access to independent advocacy and complaints and use of adult and mixed-sex wards. But there needs to be significant changes in the culture and practices of organisations before the potential of data collection can be realised.
To what extent do you agree or disagree that a care-experienced person would want to be able to form a lifelong legal bond with another person? What would you see as the advantages or disadvantages of giving legal recognition to a lifelong bond?
In principle, we strongly support the development of a new mechanism for care experienced adults to form a lifelong legal bond with an individual who is incredibly important to them. This has the potential to enrich relationships which are already life-changing. We would see this as largely operating outside of the children’s care system, and would therefore not want it to distract from the importance of local authorities and others honouring and supporting the emotional attachment and relationships which children have with their sisters and brothers and other family members, as well as with friends and past carers. Further, a legally affirmed bond with another person should not diminish the care, guidance and support (including financial assistance) which local authorities are required to provide to care experienced adults.
What support is needed to set up and make a success of Regional Care Cooperatives?
We are not convinced that Regional Care Cooperatives will improve children’s experiences in care, and remain very concerned that they will lead to more children living outside their local authority area. We see the fundamental deficit of the care system as structures, systems and decision-making being too easily distracted from the needs and rights of children, and we fear major structural change will divert valuable time, energy and resources into the task of setting up new organisations rather than parenting children.
The children’s social care review promoted Regional Care Cooperatives as a means of tackling excess profit-making within the children’s care system. We found this an unconvincing strategy: if government wants to remove or reduce profit-making in the care of children, then this requires legislation.
Are there changes you think would be helpful to make to the existing corporate parenting principles? Which bodies, organisations or sectors do you think should be in scope for the extension of the corporate parenting principles – and why?
We routinely encourage independent advocates to use the corporate parenting principles when challenging local authority decisions and inertia. They are important and useful. However, the legislation could be amended to make the duties more direct (remove ‘have regard to the need to’). As for the detail, we think the principles could be reformulated to more closely reflect what parents in wider society seek to achieve with and for their children – so we’d want to see the inclusion of children’s happiness, sense of security and belonging, and them knowing that they matter and are valued. We’d also want children’s individual personalities, interests and talents to be recognised, and explicit reference to helping children recover from past harm and challenging the stigma and inequalities faced by those with care experience.
We also recommend a move away from ‘corporate parenting’ terminology. Our suggestion is ‘shared parenting’ as this is inclusive of children’s biological parents (when they remain in children’s lives) and it signals the responsibilities of others beyond the local authority. There are bound to be better ideas. The children’s social care review recommended ‘community parenting’, which is a significant improvement on corporate parenting but doesn’t feel direct enough. In a similar vein, we support the widest range of organisations having legal obligations to carry out their functions in a way that promotes and protects the rights of care experienced children and adults, but we worry that extending parenting (statutory) duties could have the opposite effect to what is intended. Our own strategic focus would be for local authorities to have arms-length shared parenting departments or units, where everything is directed at meeting each child’s needs and fulfilling their rights. Wider obligations towards care experienced children and adults could then flow from separate legislation which supports this parenting of individual children. This could be where new Secretary of State duties sit too.
Do you have any further feedback on the proposals made in the 6 missions of this chapter?
We would change Mission 1 so it directly refers to every care experienced child and young person feeling they are loved, respected and that they matter.
Missions 2-6 are not ambitious enough in that they simply aim for “an increase” or “an improvement”. We recommend they are redrafted so that they describe how life will be for children and young people. So, for example, Mission 2 could be amended to: ‘Every child and young person feels safe and secure and cared for where they live, and they are able to maintain all of their important relationships’.
Do you have any overall comments about the potential impact, whether positive or negative, of our proposed changes on those who share protected characteristics under the Equality Act 2010 that we have not identified? Where you identify any negative impacts, we would also welcome suggestions of how you think these might be mitigated.
The Department for Education is acutely aware of our grave concerns for older children in care’s safety and well-being when they live in accommodation without day-to-day care or consistent adult supervision. Once again, we stress that nearly 70 organisations and many thousands of individuals want our children’s care system to provide care to every child until at least the age of 18. The denial of care disproportionately affects boys from black, Asian and minority ethnic communities. The ‘Stable homes, built on Love’ mantra is fatally undermined by the government’s decision to guarantee day-to-day care only to the age of 15.
Do you have any overall comments about the potential impact, whether positive or negative, of our proposed changes on children’s rights?
We urge the Department for Education, as the lead government department for co-ordinating UNCRC implementation, to use the treaty’s principles and provisions as your framework for transforming children’s social care. We would very much welcome dialogue with government on how to make this happen, should there be such a commitment. It is deeply regrettable that the only reference to the UNCRC in the whole of the proposed implementation strategy comes on the final page, with a sweeping claim that the reforms are consistent with the treaty’s four general principles and its 54 articles.