Government’s child care bill goes against decades of hard work to protect the vulnerable
By Emma Lewell-Buck
Laws protecting our most vulnerable children have been hard won and establish a solid platform for their safety and care – so why is the Government keen to throw so many away in its new Children and Social Work Bill, despite the reservations of many in the childcare sector?
The Children and Social Work Bill seeks to wipe out protective legislation in relation to children that will not only end the law as we know it but allow the subversion of the rule of law and proper parliamentary process.
The Government proposes to do this by bestowing on the Education Secretary powers to exempt councils from vast swathes of primary and secondary legislation for up to six years. This includes such wide-ranging duties as a local authority’s duty to provide accommodation to children it is looking after, assess the support needs of disabled children as they approach adulthood, allow children in their care to have reasonable contact with their parents and visit children they look after.
The National Council for Civil Liberties has said it is entirely inappropriate for primary legislation to be amended by regulations made by the Secretary of State at the request of a local authority. In constitutional terms this usurps the proper function of Parliament in making primary legislation.
Children’s social care law is a fundamental way that society protects its most vulnerable children and should only ever be amended on the basis of a strong, evidence-based case that change is needed to improve children’s safety and welfare. The Government has not given us one shred of evidence to show how children’s welfare can be improved under these reforms. In fact, a number of industry experts have identified potential for vulnerable children and young people to be at increased risk of experiencing abuse, neglect, being sexually exploited, going missing, reoffending, substance abuse and poorer life outcomes because of the removal of child protection safeguards.
No longer would there be the checks and balances introduced by statute – often after concerns about terrible abuse – to seek to ensure the safety and welfare of children. Children from other areas of the country might, however, still have some of these protections even if, for example, they are placed with the same foster carers. It would all be confused, inconsistent, incoherent and potentially dangerous.
Plans to exempt some councils from their statutory duties in child protection have been the subject of fierce opposition from campaigners and the vast majority of the social care sector. The plans were removed from the bill in November when the Government suffered a significant defeat in the House of Lords where the Bill started its parliamentary journey.
It is unusual for the Lords to expunge a whole section of a Bill. So determined is the Government to force these measures into law, however, that Tory MPs voted to reinstate them in the Bill last week.
The vote came in the full knowledge that at least 50 organisations interested in the welfare of children, including the the British Institute of Human Rights, the Fostering Network and the British Association of Social Workers were still vehemently opposed to the reforms as demonstrated in the evidence they supplied to the Bill Committee.
The Government has argued that it is a bold approach to remove red tape to allow for innovation. But many are concerned that this move, as well as being a bonfire of children’s rights, would open up child protection services to the private market. I believe their concerns are justified.
The Government set out its stall on this clause in its strategy Putting Children First, which was published in July 2016. It referred to: ‘a controlled environment in which we could enable local authorities to test deregulatory approaches that are not currently possible, before taking a decision to make substantial changes to existing legislation that would apply across the board’.
However, the document itself did not identify the ‘deregulatory approaches’ that cannot be tested presently. In the document, the chief social worker for children and families, Isabelle Trowler asserts: ‘We must be enabled to use our professional judgment in flexible and creative ways, rather than having to follow a procedural path or series of legal rules’.
For the Government’s chief social worker to seek to avoid having to follow ‘legal rules’ is deeply concerning.
A recent report from care analysts Laing Buisson, commissioned by the Department for Education to gauge the potential for developing the ‘capacity and diversity’ of children’s social care in England, found providers had a ‘clear appetite’ to take on more services, including assessment and safeguarding work and were prepared to ‘play the long game’ in the wholesale outsourcing of children’s social care services. Deregulation is surely part of this long game.
In a bid to quell the privatisation fears, the Government introduced an amendment preventing councils from using the powers to opt out from rules restricting profit-making in children’s services.
Despite these assurances, critics pointed to the statutory changes to regulations in 2014 allowing commercial, privately-owned and other organisations to be contracted to be given responsibility for statutory children in providing a number of services.
The following year, the Deregulation Act was passed, meaning that social work services to individual looked-after children and care leavers, operating outside of local authorities, were no longer required to register with Ofsted.
In any case, major outsourcing companies and others can now set up subsidiaries to receive contracts. Companies such as G4S, Serco and Virgin Care have all attended meetings with the Department for Education to consider how they can participate in delivering and shaping statutory children’s social services.
Another reason why the Government has failed to convince me over the true motivation behind the ‘power to test different ways of working’ clauses were first introduced with a view to achieving better outcomes, or the ‘same outcomes more efficiently’. There was no mention of the welfare of children, no concept of their needs or wishes, no concern shown whatsoever for their physical and mental health and well-being.
The statutory requirements allegedly inhibiting a local authority from working differently have not been convincingly demonstrated by the Government and I can only conclude that the difference being sought is fundamentally about the freedom to work outside the law.
We must not forget that these laws were hard fought for and obtained through a robust parliamentary process to protect our most vulnerable children. Each development in child protection law – and I do acknowledge laws change and evolve – has often arisen out of a single unfortunate circumstance, a tragedy that should not have occurred and by the legislation designed to make sure it does not happen again. The learning from each circumstance has been universally applied to be relevant to all young people. For the Government to so flagrantly disregard these laws and allow local authorities to make a case for being exempt from them is simply scandalous.
Removing legal protection from some children, on the basis of geography, introduces a postcode lottery of care.
Children and families living close by but across a local council boundary would have different rights and the councils would have differing statutory responsibilities. Courts would cover local authority areas where the law, as amended by the Secretary of State, was not uniform and consistent. It would generate a patchwork quilt of piece-meal legislation.
And these tests can last up to six years – a very long time in the life-forming stages of a person’s life. Vulnerable children should not be used as guinea pigs to test out vague and untested concepts.
And the real truth is, local authorities do not need to opt out of primary legislation in order to innovate. Many councils throughout the country provide ‘outstanding’ children’s services and have introduced innovation without having to cast aside their legal obligations.
Getting legislation right in children’s social care is extremely important. Legal duties play a key role in protecting those most in need, and we should always approach change in this area with great caution to ensure that children and young people are not put at risk.
With such massive opposition and concern about the potential impact on the country’s most vulnerable children, you have to wonder why ministers are intent on pushing this through without any public consultation.
I will do everything in my power to prevent this radical agenda of breaking up children’s law being pushed through parliament without public consultation or a green or white paper.
Innovation can undoubtedly improve child protection provision for children and young people; opting out of child protection legislation will not and may very well make their outcomes worse. The question is, will this Government take responsibility when it does?
Emma Lewell-Buck is a Labour MP for South Shields.Tags: child care, Children and Social Work Bill, Emma Lewell-Buck, Labour, South Shields