Tag: Children’s social care

GOVERNMENT WITHDRAWS ‘MYTH BUSTING’ DOCUMENT AFTER LEGAL CHALLENGE

The Department for Education has withdrawn a controversial document about council duties to vulnerable children and young people, after Article 39 launched an application for judicial review.

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

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

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

Carolyne Willow, Article 39’s Director, said:

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Minister didn’t respond to our serious concerns months ago but what matters is that the document has now been withdrawn and the risks to children and young people minimised.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

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

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website, the Department for Education has committed to notify local authorities and others that the document has been withdrawn.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

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

“It is absolutely right that this guide has been withdrawn.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

Notes

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

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

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

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

Article 39 threatens legal action to protect vulnerable children

Article 39 has written to the Secretary of State for Education and government lawyers threatening a judicial review if a misleading document about local authority duties towards vulnerable children is not withdrawn.

The document, produced by the Department for Education’s children’s social care innovation programme, claims to expose myths in common understandings of council legal obligations towards vulnerable children. But Article 39, together with other children’s law experts, has identified numerous errors and misrepresentations of the statutory framework for children’s social care.

For example, councils are advised that they can reduce visits to children in long-term foster care to twice a year, yet the law states this is only permissible if the child gives their consent. This ensures young children, and other children unable to understand the implications of relaxing council monitoring of their care, continue to be visited regularly by social workers.

Most of the so-called myth-busting topics concern the protection given to children in care such as the frequency of visits from social workers, who is responsible for planning and supervising children’s care and the support given to foster carers. A series of questions are posed with advice from the Department for Education about the minimum actions they are allowed to take.

Freedom of information requests made by Article 39 have revealed that Ofsted disagreed with the innovation programme’s advice on council duties in respect of providing children and foster carers with their own social workers in the case of long-term placements (where a child has lived with the same family for at least a year).

Ofsted told the innovation programme that “The interpretation of all local authorities to date of the statutory guidance is to have two social workers – one supporting the child and the other the foster carers”, and that to reduce this to one would be “removing a significant safeguard for children in foster care”.

Despite this warning from the children’s social care regulator, the document was published with advice to councils that statutory guidance does not require them to give fostered children and foster carers different social workers.

An earlier draft of the document said it was agreed by Ofsted but this text was diluted to “in consultation with Ofsted” following the clash.

Elsewhere the document states that children who have run away should be offered an interview with someone independent after they return, yet existing statutory guidance is stronger than this because it says this safeguard must be offered.

Statutory guidance states that foster carers must receive at least one unannounced visit at home each year in addition to other visits and support from social workers. Clearly in conflict with this, the ‘myth busting’ document refers to just one visit a year as the minimum.

A joint letter was sent to the Children’s Minister Nadhim Zahawi MP last year, setting out the legal inaccuracies in the document. Fifty charities and social work experts urged the Minister to withdraw parts of the document that conflict with existing legislation and government guidance, because of the serious risks to children.

Labour’s Shadow Children’s Minister Emma Lewell-Buck MP also challenged the Minister in the House of Commons, accusing him of “cutting vulnerable children adrift”.  A further request that the Minister withdraw the document or at least meet with concerned charities was rejected.

Carolyne Willow, Article 39’s Director, said:

“It is not good enough for the Minister to say there have been no changes to the law and statutory guidance while at the same time leaving in circulation a document which indicates otherwise. Council duties towards vulnerable children cannot exist and not exist at the same time.

“We are a small charity and taking legal action is inevitably risky financially but we cannot stand by and leave it to vulnerable children to have to go to court to defend the rights that Parliament and successive governments have given them.”

Copies of emails released by Ofsted show that the myth busting document originated from a meeting of the innovation programme, Ofsted and a small number of local authorities in 2017. That year the Department for Education sought to press through legislation which would have allowed individual councils to opt out of their social care duties towards children and families.

Over 108,000 members of the public signed an online petition opposing what came to be known as the exemption clauses in the Children and Social Work Bill. Peers voted them out of the legislation but a revised set of clauses were inserted when it returned to the House of Commons. These were removed from the Bill in their entirety after the then Education Secretary Justine Greening MP added her name to opposition amendments to delete them, in the face of widespread criticism that the plans undermined the rule of law and child protection.

Article 39 is represented by Oliver Studdert, Partner in Public Law at Simpson Millar, and Steve Broach, barrister at Monckton Chambers.