Legal Update: The Children and Families Bill

The Children and Families Bill, which received its first reading on 4 February in the House of Commons, proposes reforms to child law, special educational needs provision and the family justice system. This review touches briefly on the major issues raised by the bill.

Adoption and looked-after children
Children wait on average for two years between being placed in care and being adopted. The bill aims to reduce these delays through a range of measures, including the promotion of “fostering to adoption”, which would encourage local authorities to place children in foster care with the prospective adopters to avoid further disruption once the care plan for adoption is finalised.

The bill also removes the existing requirement to give due consideration to the child’s religious, racial, cultural, and linguistic background in order to expedite the adoption of ethnic minority children. It also reduces the emphasis on post-adoption contact and gives more rights to adoptive parents.

Family justice system
There has been long-term concern over the efficiency of the family justice system. To address this, the bill introduces a time limit of 26 weeks for care cases to be completed. The bill seeks to achieve this by tightening the rules on the use of experts and making case management more efficient.

It is debatable whether the limit is realistic since care cases take, on average, almost double this time at present.

The bill does not introduce “shared parenting” but does introduce a new presumption to the Children Act 1989. Clause 11 of the bill provides that, unless the contrary is shown, it is to be presumed that the involvement of both parents in the child’s life will further the child’s welfare. “The contrary” requires proof that the involvement of both parents threatens to cause the child some harm. Children’s organisations are likely to remain concerned about whether this new “presumption” is compatible with the existing prioritisation in the Children Act that the best interests of the child are the paramount concern.

The bill also replaces “residence” and “contact” orders with “child arrangement” orders. These orders prescribe with whom the child is to live and have contact. They aim to encourage parents to focus on their child’s needs rather than their own “rights”.

Special educational needs
The bill seeks to implement proposals outlined in the government’s paper, Support and Aspiration: A New Approach to Special Educational Needs and Disability. It proposes extending SEN support for children from birth to 25 years, and giving families greater control in decisions concerning SEN provision. SEN statements would be replaced by education, health and care plans that involve co-operation between all local authority services that support children. These proposals have been largely welcomed by children’s organisations but concerns remain about the ability of local authority services to co-operate in practice.

Children’s commissioner
The bill would also transform the mandate of the children’s commissioner. At present, the commissioner’s mandate is focused on the Every Child Matters outcomes. The bill proposes shifting the commissioner’s statutory remit to “promote and protect children’s rights” and to make the commissioner more independent from government. It will not, however, authorise the commissioner to take individual cases for children. These changes are welcomed by children’s organisations, which have long called for an independent office charged with the promotion of children’s rights in England.