Zahawi: Controversial legal guidance 'helps councils target child protection'

The document, Children's Social Care statutory guidance myth busting, which has been published on the government's social care innovation website, highlights a number of elements of statutory guidance that "act as a barrier to good practice and outcomes for children and families".

It cites examples of statutory guidance that is "either misunderstood or perceived to limit local authorities from testing new ways of working", such as elements of Working Together to Safeguard Children 2018.

In an open letter to children's minister Nadhim Zahawi, campaign group Together for Children, which successfully fought the so-called "exemption clause" last year, said that parts of the guidance are incorrect and risk harming vulnerable children and those caring for them by encouraging councils to act in contravention of their legal duties.

But in a letter to Carolyne Willow, director of children's rights organisation Article 39, a member of together for Children, Zahawi responded by saying that the myth buster guide does not seek to change the law, but to clarify misunderstood elements of statutory guidance, and has the backing of local authority children's services leaders.

I have written to @article_39 about our ‘myth-busting' guide on children's social care statutory guidance to reassure the sector that it does not change any of their responsibilities. It simply clarifies some sections of the guidance, following feedback from councils pic.twitter.com/Y5N1pNBmfN

— Nadhim Zahawi (@nadhimzahawi) September 10, 2018

"The aim of the guide is to help practitioners provide targeted support for children and families," the letter, published by Zahawi on Twitter, states.

"I want to be clear that this guide does not seek to change anything in the current statutory framework for children's social care. It does not seek to alter primary or secondary legislation nor does it have the force of law.

"The guide was produced following engagement with local authorities and in consultation with Ofsted. It seeks to clarify certain areas of the statutory guidance which practitioners had said were ambiguous or had given rise to incorrect assumptions about what is permissible.

"The guide has been welcomed by many, including directors of children's services, who recognise the need to tailor their interventions to the needs of the individual child."

However, tweeting in response, the Fostering Network, one of the signatories to the original letter to Zahawi, said his response does not address their concerns.

"Thank you for the reply, but this doesn't answer the detailed points where we collectively think that the advice in the 'myth-busting' guide is incorrect," it said.

"Also, surely statutory means just that and therefore cannot be open to local interpretation."

Carolyne Willow said: "Very unfortunately, the minister is continuing the confusion that the so-called myth busting guide started. The title of the guide doesn't help, because it incorrectly links everything to statutory guidance.

"To be clear, the statutory framework for the care system comprises primary legislation, secondary legislation, statutory guidance and national minimum standards. The majority of our concerns relate to what the guide incorrectly states is possible under present legislation. 

"Even if this was all about statutory guidance, it is simply wrong for the minister to claim that this does not have the force of law and to imply that local authorities can pick and choose which elements of statutory guidance they follow. 

"Our request for parts of the guide to be withdrawn was entirely reasonable given the risk of the law being misunderstood and children and young people suffering harm as a consequence. 
 
"We cannot let this go unchallenged and are discussing possible next steps with colleagues in other charities, as well as taking further legal advice."

• Analysis: Exemption clause causes division
  
  
• LGA board chief: let councils solve children's services challenges

The myth-busting notice includes advice on questions such as whether it is lawful to have one social worker for children and foster carers when a child is in a stable, long-term placement, how often supervising social workers have to visit children, and whether children who go missing always require an independent return home interview.

Its publication comes 18 months after the government scrapped controversial plans to allow councils to apply for exemptions from social care legislation.