'Emergency legislation is another attempt to push through exemption clause changes'
Mark Kerr
Friday, April 24, 2020
This week, the government introduced Statutory Instrument 2020 No. 445, by way of new powers alleged to exist under the Coronavirus Act.
A statutory instrument is secondary legislation, and in this case amends the law in relation to children’s services. The amendments change several acts of parliament including regulations for residential care, foster care (both private and public), adoption, family centres, inspection, care planning and reviews; acts which originally took months and years for parliament to pass.
The changes to legislation prescribed by Statutory Instrument 445 are far-reaching and will significantly reduce the level of protection for our most vulnerable children.
Time limits for reviews have been abandoned. Highly ambiguous language - in phrases such as ‘as soon as reasonably practicable’ and ‘use reasonable endeavours to’ - is now scattered throughout what were previously tight and enforceable laws to protect vulnerable children.
There are far too many changes to cover in this article. Here are a few examples:
-
Assessments that should inform decisions about whether a placement is safe for a child can now be undertaken after the placement decision has been made.
-
The views, wishes and feelings of children can now legally be ignored.
Statutory Instrument 445 relaxes the legal requirements on a registered person or responsible individual if they are convicted of a criminal offence. Instead of having to give notice of the details of the offence to the chief inspector ‘without delay’, they can now do so ‘as soon as is reasonably practicable’.
Can someone from government please explain why the coronavirus pandemic should mean that a person responsible for the safety of hundreds of vulnerable children can be arrested for any offence (even an offence against children) and delay informing the regulator?
If the far-reaching changes to legislation were solely in response to the coronavirus pandemic, then the policy team can be commended for completing such a monumental task in such a short period of time. However, it is my opinion that the changes and aims seen in Statutory Instrument 445 are not a response to the coronavirus pandemic. They have history; we have seen them and challenged them before.
Two key events inform my opinion.
The first was clause 15 of the Child and Family Social Work Bill 2017, which came to be known as the ‘exemption clause’. The exemption clause proposed the following:
Clause 15: Power to test different ways of working
- The purpose of this section is to enable a local authority in England to test different ways of working with a view to achieving better outcomes under children’s social care legislation or achieving the same outcomes more efficiently.
- The Secretary of State may by regulations, for that purpose—
- exempt a local authority in England from a requirement imposed by
children’s social care legislation; - modify the way in which a requirement imposed by children’s social
care legislation applies in relation to a local authority in England.
- exempt a local authority in England from a requirement imposed by
This clause would have allowed critical protection for vulnerable children (built up over 80 years) to be removed.
I am one of a small group of experts who were vehemently opposed to clause 15. We formed a group called Together for Children led by the children’s rights charity Article 39. What became a lengthy campaign (lasting 292 days) commenced, supported by leading experts in children’s social care.
As part of the challenge, we asked the government what sort of changes to ways of working they wanted to ‘test’ if the Bill was passed. We were provided with three examples and they stunned us stating they would:
- Relax the assessment process for children’s placements with family and friends
- Removing the duty for Independent Reviewing Officers for “low risk” children in care
- Disbanding adoption and fostering panels
The examples have a common theme: Reducing of protection for children and removal of independent oversight of children’s services.
As part of the parliamentary process, the House of Commons public bill committee undertook extensive consultation with experts and stakeholders across children’s social care. In total, 47 organisations and individuals submitted evidence - 44 opposed the exemption clauses, two expressed concern and only one supported the clauses. Further, the highly regarded Professor Eileen Munro refused to back what she described as ‘dangerous’ social care exemptions.
By the end of the campaign, Together for Children comprised of 53 organisations, over 160 individual experts and 108,047 members of the general public via petition.
Eventually, the Secretary of State for Education (Justine Greening) agreed that the proposed changes were too high risk for children and supported an amendment to withdraw clause 15 from the Child and Family Social Work Bill.
However, this was not the final attempt to reduce the protections and independent oversight provided to our most vulnerable children.
In August 2018, the Department for Education published a ‘Myth Busting Guide’. This guide claimed that local authorities were misinterpreting legislation in children’s social care and that certain duties could be dispensed with – many of which previously did require legislation change as per Clause 15 of the Child and Family Social Work Bill.
Our expert group disagreed with the Department for Education’s claims in the Myth Busting Guide and we campaigned for the guide to be rescinded.
The DfE refused, so we filed for Judicial Review, and eventually the DfE retracted the Myth Busting Guide.
In my opinion, they did this having realised that it would likely be judged contrary to law.
The government has now introduced Statutory Instrument 445, intending once again to reduce child protection duties (as previously attempted through the exemption clause, and then through the Myth Busting Guide).
This was confirmed at the education select committee hearing on 21 April 2020 in the following exchange:
David Simmonds MP: "Is the Department learning and going to be learning from the suspension of any of those Statutory Duties and seeing whether that has exposed the fact that in fact they weren’t leading to purposeful activity with a view to dispensing of those Statutory Duties freeing people up to do more useful things in the future?"
Vicky Ford MP (parliamentary under-secretary of state for children and families): "That’s exactly the point David about why we are laying in place the statutory… undiscernible… in order to see the possibility on certain statutory duties and we are focused on giving that flexibility on the lower risk areas in order to make sure that the experts on the ground can be focused on what they need to do now."
David Simmonds MP: "That was exactly what I wanted to hear."
It should be noted that before becoming an MP, David Simmonds was part of the Local Government Association and supported the exemption clauses.
Vicky Ford intimates that their intention is to learn what can be achieved by dispensing of statutory duties. Children looked after are the guinea pigs.
The minister says decisions should be made by experts on the ground, but only mentioned consulting with directors of children’s services. There are many more experts that should be consulted when considering such far-reaching, historic changes to our child protection laws.
I argue that experts have already given strong opinions on such changes. They did so through the challenge to clause 15 in the Child and Family Social Work Bill 2017. Opinions were virtually unanimous that the proposed changes to legislation were dangerous and would put our most vulnerable children at increased risk.
The under-secretary of state is very new in post. She must understand that in children’s social care there is little to no aspect of the work that is ‘low risk’, especially for those looked after in the care system. The very fact that the children are subject to social care support or intervention means that they are at risk and that we must protect them.
These changes to legislation that are being rushed through, allegedly, in response to coronavirus, have arrived out of nowhere. I work intensely with frontline professionals developing children’s social care services, including now during this pandemic, and see no need for these sweeping changes. Local authorities and frontline professionals responsible for children do not need changes to statutory duties, they just need the resources (especially financial) to meet them.
We must all scrutinise Statutory Instrument 445 as it has far-reaching consequences. We are experiencing a period where vulnerable children are at an increased risk of harm - much more so than in 2017 when similar proposals were considered. The government will claim that these changes are only in effect for six months, but there is nothing preventing them from continuously extending the changes for as long as the Coronavirus Act exists.
Our child protection laws, and subsequent statutory duties, have built up over many years based on evidence of risk and learning from critical events. The tragic deaths of Daniel Pelka and Victoria Climbié are recent examples of learning events that have informed our child protection laws. We cannot let their deaths be in vain.
Our child protection laws have been passed following extensive scrutiny by parliament. At a time of such heightened risk to children it is Parliament’s duty to uphold, not reduce, protection for children. To simply accept this statutory instrument without challenge is to ignore the expertise of 53 organisations, over 160 individual experts and the views of 108,047 members of the general public.
Mark Kerr is the chief executive of the Centre for Outcomes of Care