When care practice outflanks the law

Andrew Webb
Monday, August 26, 2019

It is 30 years since the Children Act 1989 received Royal Assent and despite the fact it has not subsequently been repealed or even substantially amended, the current "crisis" in the care system suggests that practice has drifted away from two of its key principles: that the state should work in partnership with parents; and that if families can be supported without recourse to the law, they should be.

The Nuffield Family Justice Observatory (FJO) has published a thorough, comprehensive and timely review of special guardianship orders (SGOs) which estimates that in addition to the care numbers we regularly see in the news headlines, 21,000 children have been made subject to SGOs since 2010. These orders were originally designed to support permanence for children already living in stable placements, yet despite this, they are now regularly used to resolve complex issues in care proceedings; often without anything remotely resembling a thorough assessment (or matching) of need and capacity being available to the court.

The FJO review makes recommendations about preparing and supporting special guardians and ensuring that children are not placed with people they don't know: essentially recommending putting SGOs on an equal footing with other permanence options when it comes to support. I wouldn't argue with any of that, particularly in light of the evidence of "vulnerability to disruption" of children placed when older, or from particularly stressful homes.

It seems that the biggest issue we should be debating is how come judges, lawyers and social workers have conspired to use the law in a way that was never intended, for so many children and over such a long time? Partly, this results from a lack of trust - whether deserved or not - in the local authority's capacity or willingness to support families as the 1989 Act prescribes. In many cases, this mistrust leads to the making of a supervision order in parallel with the SGO - presumably because the court doesn't fully trust the special guardian either.

The FJO review quotes research which notes that family members are regularly not identified until after care proceedings have commenced, and that the wishes and feelings and needs of children played little part in decision-making, and, to be fair, does recommend increasing the focus on working with family members who might become the child's special guardian before care proceedings commence. But what it doesn't say nearly loudly enough is that local authorities should be held to account for failing to provide skilled, well resourced family and kinship support services as a matter of course.

Having watched councils being beaten up by Ofsted for not taking enough children into care, then starved of cash by central government for a decade, they should not take this criticism lying down, but a Family Group Conference and well resourced, medium-term support plan generally costs a lot less than a care placement… and for most groups of children is associated with better all-round outcomes.

  • Andrew Webb is a former ADCS president

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