Legal Update: Children and Social Work Bill
Marianne Lagrue
Tuesday, November 22, 2016
Marianne Lagrue, project officer at Coram Children's Legal Centre, examines the government's recent defeat in the House of Lords over controversial exemption clauses in the Children and Social Work Bill.
On 8 November, at report stage of the Children and Social Work Bill, the government suffered a high-profile defeat in the House of Lords.
Clauses 29-33 (formerly cl. 15-18) made provision that where local authorities in England believe alternative approaches to those prescribed in legislation could support looked-after children more effectively or efficiently, they may request from government exemptions or modifications from such requirements as they propose for a time-limited testing period. The government has argued that the purpose of the clauses in question is to facilitate innovation in social care practice.
The powers would allow ministers to permit local authorities to suspend specific social care legal obligations for a three-year period, with the possibility of a three-year extension and the option for a permanent exemption if the practices adopted were deemed a success.
However, the clauses attracted a broad spectrum of opposition from social work practitioners, children's charities, medical professionals and others. Various coalitions argued that the clauses would create a fast-track procedure for the removal of local authority social care duties towards vulnerable children and families, including those who are looked-after and living in children's homes, secure children's homes, custody and residential schools. Such a fast-track procedure, it was argued, would threaten vital, universal duties that have evolved over many decades to meet the needs and protect the rights of vulnerable children and young people.
In the Lords' debate and elsewhere the government was criticised for failing to consult with professional bodies and the public in advance of drafting and introducing the bill. In June, the House of Commons education select committee condemned the measures, saying that improvement in children's social care was more likely to come from concentrating on the basics, such as reducing social worker caseloads, than through structural reforms. It was also noted that the government offered no evidence that acts of parliament or regulations are getting in the way of meeting children's needs, and did not address the sudden departure from the customary practice of carefully refining and improving legislation, and repealing redundant laws, as and when necessary. Opponents of the powers argued that local authorities should not be exempted from compliance with statutory duties unless there is compelling evidence demonstrating that these duties inhibit the delivery of the very best in social care to children and families.
Signatories to the successful amendment which sought the outright removal of the clauses, as well as many of the professional and third sector organisations opposing the measures, stressed the importance of innovative and effective service delivery that meets the needs of vulnerable children and families. However, it was argued that introducing a wholesale power to exempt a local authority from a duty derived from primary legislation, without further parliamentary scrutiny, through regulations made by a Secretary of State at the request of, and applicable to, a single local authority was both disproportionate and inappropriate.
Amendment
The government sought to alleviate the most high-profile concerns by introducing an amendment to the controversial clause prohibiting the laying of regulations under these powers arranging for functions to be carried out by a "for-profit" organisation. While initially welcomed, this amendment did not prove sufficient to allay the concerns of the House of Lords, which voted 245 to 213 in favour of scrapping clause 29 in its entirety.
Peers raised concerns over the role of the courts in enforcing statutory obligations according to an arbitrary disapplication or modification of the law across local geographical boundaries. All legal duties and obligations placed on local authorities by children's social care law are ultimately enforceable by the courts. However, the courts will be unable to enforce the rights of the young person or family concerned if a local authority has received an exemption from acting in accordance with the law.
Concerns were also raised over the interaction of the powers contained within the clauses with other recent legislation passed by the government. In particular, the clauses were mentioned in connection with recent provisions in the Immigration Act 2016, which adversely affects the care status of some former unaccompanied asylum-seeking children. Peers expressed concerns that the Secretary of State for Education might use the powers to set aside legislation and regulations in this area to further restrict the care provided to this group of children and young people.
The Children and Social Work Bill will return to the House of Lords for third reading on 23 November, and will then progress to the House of Commons for further scrutiny and amendment.
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Legal Update is produced in association with experts at Coram Children's Legal Centre www.childrenslegalcentre.com
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