Just 18 months after the government scrapped controversial plans to allow councils to apply for exemptions from social care legislation, a new row has erupted over perceived fresh attempts to dilute statutory child protection obligations.
As part of a "mythbuster" document issued by the Department for Education, a number of elements of statutory guidance that "act as a barrier to good practice and outcomes for children and families" have been highlighted - with clarification given on what is required by law.
Campaign group Together for Children, which spearheaded opposition to the so-called "exemption clause", claims elements of the mythbusting guidance are incorrect and risk harming vulnerable children by encouraging councils to act in contravention of their legal duties.
However, the DfE has defended it, arguing that it does not seek to change the law, merely clarify elements of statutory guidance.
In total, the document poses 10 questions on a range of children's services topics (see below), the key ones being explored here.
Several of them relate to fostering arrangements such as whether it is possible for supervising social workers to visit less frequently in stable and long-term placements, and have one social worker for both children and foster carers.
Jackie Sanders, director of communications and public affairs at The Fostering Network, says that while her organisation is in favour of long-term fostering as a permanence option and normalising the experience of children in care as much as possible, the general principle should be for children and their foster carers to be supported by different people.
"Although in most cases the wishes of young people and their carers will be aligned, it cannot be assumed that this will always be the case and in such circumstances, it is vital that the voice of the young person does not get lost," she says.
"If there is only one social worker or personal adviser, they may find themselves in a position of conflict, unsure as to whose needs should take priority."
She adds that The Fostering Network does believe that the number of visits by social workers in a stable, long-term foster care placement could be reduced, but this should only be done in agreement with the child as per statutory guidance.
"The mythbusting guide does not make the need for that agreement clear and nor does it define stable and long-term," she says.
"Our over-riding feeling is that it is not helpful to have a mythbusting guide from the government that isn't busting any actual myths and instead is causing confusion and potentially undermining safeguarding processes."
However, Andy Elvin, chief executive of The Adolescent and Children's Trust (Tact), suggests that some current ways of working are unnecessary.
"Many young people Tact look after do not value having a social worker and say that they would rather not," he says.
"If the young person makes an informed decision not to have a social worker, if they have access to an independent advocate should they want it and if they can change their mind and request a dedicated social worker, then I see no reason why this could not be piloted. The key is it has to be young-person led."
Another area the mythbuster looks at is support for missing children who return home, an area of practice where guidance was strengthened just four years ago. Then, new guidance aimed to ensure every child going missing would have the chance to talk to an independent person on their return.
Where previous guidance was that a return interview "should" be offered to children in care, the 2014 guidance changed this to "must", and set out the importance of an independent person conducting the interview.
The mythbuster appears to row back on this, stating that the DfE and Ofsted agree that an independent return home interview "should be offered to a child".
"The offer made must be genuine and the young person encouraged to accept, but if the child does not want this interview, then it does not have to take place," the document states.
It also stresses that the 2014 guidance does not prescribe who the independent interviewer should be, and points out that if the child does not want an independent interviewer, they can chose who they want to do the interview.
Dara de Burca, director for children and young people at The Children's Society, which helped develop the guidance, says it is crucial that children who go missing are offered a return home interview so that potential serious risks, such as child sexual exploitation and criminal exploitation, can be understood and support put in place.
"While children should never be made to speak to someone if they do not want to, the offer must be genuine, and we would urge the government to clarify this guidance to emphasise that every effort should be made to engage with children," she says.
"It must also be made clear that this is not a one-off offer of support and that even if a child does not initially want a return home interview, they can ask for help at any time."
Despite the DfE's insistence that the mythbuster does not seek to alter primary or secondary legislation, campaigners are already discussing possible next steps and taking further legal advice.
Questions the mythbusting guide poses to councils
- Can councils use whole family assessments rather than individual assessments when there is more than one child referred to children's social care?
- Can councils integrate the youth offending team assessments within a looked-after child remand assessment?'
- Do councils always have to conduct an independent return home interview?
- Can councils have one social worker for children and foster carers when a child is in a stable, long-term placement?
- Can a Personal Adviser take on the role of the supervising social worker for foster carers where the young person is Staying Put?
- Can supervising social workers visit less frequently in stable and long-term placements?
- Can social workers visit less frequently than the normal six-weekly basis in stable and long-term placements?'
- Are local authorities required to use the categories of neglect in child protection conferences and can we add to these categories?
- Is there flexibility to combine fostering and adoption panels?
- Does an independent reviewing officer have to chair child protection conferences where their looked-after children's situation is being assessed?'
Guide's message is clear: you can reduce support for vulnerable children
By Carolyne Willow, director of Article 39
I once attended a meeting of social work managers protesting that children in care were becoming too strident about their rights. One of the complaints was that I had visited a children's home and told young people they had the right to demand spaghetti! This wasn't true and I dismissed the accusation as an urban myth.
Unlike urban myths, which originate in popular culture, this "mythbusting" guide started in Whitehall. In eight or so pages, the document races through and past a multitude of legal requirements. Even when regulations - secondary legislation - are acknowledged in the text, the guide sloppily continues with the format of "What does the guidance say?" and "What does the guidance allow?".
It's a challenge to condense all that's wrong. But here are some examples.
Contrary to the current statutory framework, the guide advises that children and foster carers in stable, long-term placements do not have to have separate social workers.
The part telling councils what they are allowed to do in respect of social worker visits omits the legal caveat that two visits a year is only possible if the child agrees.
The guide incorrectly says personal advisers can take on the role of supervising social workers in Staying Put arrangements (where no other children are fostered); that long-term foster carers may be visited by their social worker just once a year; and assessments of children remanded to custody do not have to be led by a social worker.
The overriding message from central government is loud and clear: "Yes, you can reduce and remove social work support to children in care and care leavers."
We have been here before. Had it not been for major parliamentary and children's sector opposition, the Children and Social Work Act 2017 would have allowed councils to opt-out of their children's social care statutory duties at a time of severe cuts to their budgets.
One of the proposed uses of the exemption clauses was a trialling of children in long-term foster care not having their own social workers.
But, hey presto, councils are now told they can do it without any change to the law. I'd rather return to battles over spaghetti.
Mythbuster advises councils how limited funding can be most beneficial
By Anntoinette Bramble, chair, the Local Government Association (LGA) children and young people board
We have always supported the principle of allowing highly trained, experienced professionals the flexibility to test new approaches to safeguarding and child protection within a highly scrutinised and extensively regulated environment.
With councils facing a £3bn funding gap for children's services by 2025 and overspending their children's social care budgets by more than £800m in the last year alone, it is more important than ever that scarce resources are effectively targeted at the areas that will make the biggest difference for children and families.
This guidance provides helpful advice on where councils are able to do things differently if they feel this is in the best interests of children. But we agree that the DfE must urgently clarify the questions that have been raised around the accuracy of elements of this advice, so that councils and their residents can be confident that any action taken is fully in line with current legislation and guidance.
It is also important that Ofsted and the wider local government sector continues to monitor any new practice that emerges as a result of this work, both to ensure that it is to the benefit of children and families and also to share learning as widely as possible.
Where flexibility produces positive outcomes, we must be ready to capture that learning and support others to do likewise. Where new approaches are not effective, it is vital that we are able to act quickly to identify and address any issues. The emerging network of Regional Improvement Alliances and the LGA's own sector-led improvement offer are both well placed to do that.
However, we must be clear that the small flexibilities outlined in this guidance are no replacement for the fully funded children's services that are so desperately needed.
Children's services across the country are fast approaching a tipping point and, while flexibility is welcome, it is not the urgent action that the LGA and a host of other organisations have called for.