I am grateful to Rodney Noon for permission to re-publish here his December Editor’s Blog on the exemption clauses in the CSW Bill. This originally appeared on the Seen and Heard pages of the Nagalro website – and I think it needs the widest possible audience.
POWER TO TEST DIFFERENT WAYS OF WORKING: WHERE ARE WE NOW?
The Government’s controversial clause 29 to the Children and Social Work Bill was deleted in its entirety, by a significant majority in the House of Lords. The Bill has now moved to the Commons and the Children’s Minister, Edward Timpson, is proposing an amendment which would reintroduce the provisions in what he describes, in a letter of 7 December 2016, as a ‘significantly amended’ form. What has changed from the original clauses and is it enough to make the provisions acceptable?
Scope of the Provisions
Living in the countryside, we sometimes have field mice coming into the outbuildings. If someone called round, claiming he could get rid of them, but carrying an assault rifle, plastic explosives and a flame thrower, I would be alarmed. I doubt if that alarm would be reduced by assurances that these things were not going to be used. The question, ‘why are they even here?’ would not have been answered. This was one of the problems with the original provisions of the Bill. It had the capacity to suspend vast swathes of both primary and secondary legislation. The Government has, to this day, not satisfactorily explained why it should even want to have such far-reaching powers.
The new clause has exactly the same starting point as the old clause 29, namely, that it covers ‘a requirement imposed by children’s social care legislation’. There follows the self-same definition of ‘children’s social care legislation’ that we found in the old version, namely:
‘any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18;’
together with ss23C and D of the Children Act 1989, the Children Act 2004 and any secondary regulations and such made under any of those Acts.
The first task therefore, has to be to look at what is actually in Schedule 1. Here is the list as it currently stands, insofar as it relates to children:
• Children and Young Persons Act 1933 Parts III and IV
• Children and Young Persons Act 1963 Part I
• Children and Young Persons Act 1969
• Adoption Act 1976 (transitional and saving provisions only)
• Children Act 1989
• Adoption (Intercountry Aspects) Act 1999 sections 1 and 2(4)
• Adoption and Children Act 2002
• Children Act 2004 sections 9A and 13 to 16
• Children and Young Persons Act 2008 Part 1
• Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 92 (functions in relation to a child remanded to local authority accommodation)
The schedule contains many other pieces of legislation which are, at least primarily, concerned with the care of adults.
Although Schedule 1 has only a small number of sections from the Children Act 2004 included, the proposed provisions of the Bill would bring the whole of the 2004 Act within the scope of the potential exemptions.
On top of these, any statutory instruments, made under these pieces of legislation are susceptible to suspension. The list will be rather larger than the human mind can comfortably accommodate.
It was the sheer breadth of the potential exemptions which caused such consternation amongst many. Was it just rushed, or lazy drafting? Schedule 1 to the Local Authority Social Services Act 1970 also includes disability and mental health statutes. Would a list of legislation specific to the use of these powers have been too much to ask? The overall impression is that the draftsman wanted to make his work as impenetrable as possible. A much better way of drafting the Bill, if clarity was desired, would have been to list the specific provisions from which exemptions might be given. Debate could then have centred around the merits of those individual sections or statutory instruments. Instead a ‘blank cheque’ is sought and an injured innocence expressed, when there is vociferous opposition.
Having initially proposed the same wide-ranging possibilities for exemptions, the new clause offers to exclude various provisions from its scope. They are:
• Section 17 Children Act 1989 (Duty to provide services to children in need)
• Schedule 2 (Part I) Children Act 1989
• Section 20 Children Act 1989 (Provision of accommodation for children in need of it)
• Section 22 Children Act 1989 (Duty to promote the welfare of looked after children)
• Section 47 Children Act 1989 (Duty to make enquiries and take action to promote the welfare of children at risk)
• Section 10 Children Act 2004 (Promoting co-operation to improve the wellbeing of children)
• Section 11 Children Act 2004 (Making arrangements to ensure that regard is had to the need to safeguard and promote the welfare of children)
Those seven provisions are the ‘comfort blanket’ which is offered to those who oppose the legislation. Are they sufficient? The first test has to be to carry the proposal to its logical extreme. A ‘stress test’ if you will. What would the world of children’s social care look like if that were all that were left? A fearful sight, you may think.
Now, those who promote the clause will say that this is an unfair test because there are safeguards in sub-clause 1 which require any suspension to be for the purpose of promoting the wellbeing of children and the regulations giving exemptions must be approved by Parliament and subject to consultation. All of this is true. However, since one of the objections to the initial clause was its breadth of application; the sense that everything was ‘up for grabs’, I would argue it is a legitimate test to perform. The retreat from the old clause 29 on this issue has been a very small one, with the provisions protected, probably never seriously considered for exemption in the first place.
What remains on the ‘at risk’ list? To list every set of regulations and each section of each Act would tax the patience of writer and reader alike, but some examples, picked at random, might inform the debate.
• Section 14F Children Act 1989 (special guardianship support services)
• Special Guardianship Regulations 2005 (Supporting s14F above)
• Sections 17ZA to 17ZC Children Act 1989 (young carers needs assessments)
• The Young Carers (Needs Assessments) Regulations 2015
• Section 21 Children Act 1989 (provision of accommodation for children in police protection or detention or on remand)
• Sections 22A to 22G Children Act 1989 (local authority duties to provide accommodation and maintenance for looked after children). It should be noted that only the general duty to safeguard and promote the welfare of looked after children under section 22 is protected from suspension. The more detailed duties, inserted into the Children Act by the Children and Young Persons Act 2008, are not subject to any protection against suspension.
• Section 23ZA Children Act 1989 (duty of local authority to visit looked after children and arrange for them to receive advice, support and assistance)
• Section 23ZB Children Act 1989 (independent visitors for looked after children)
• Section 23CZA Children Act 1989 (staying put arrangements)
• Section 25 Children Act 1989 (restrictions on the use of secure accommodation)
• Children (Secure Accommodation) Regulations 1991
• Section 25A Children Act 1989 (appointment of independent reviewing officer)
• Section 34 Children Act 1989 (local authority duties to allow contact with children in care).
Despite the Secretary of State’s statement that the Bill is compatible with the Human Rights Act, it has to be said that this sits uneasily with article 8.
• The whole of Schedule 2 Part II Children Act 1989, which not only set out the duties of a local authority towards looked after children, but also forms the basis of a substantial body of regulations including provisions for the local authority to supervise and inspect foster carers and the accommodation which they offer. Part II includes paragraph 15 which imposes a duty on a local authority to promote contact between a looked after child and his family.
• Section 49 Children Act 2004 (payments to foster carers)
• Care Planning, Placement and Care Review (England) Regulations 2010. These regulations are of crucial importance to ensuring that children are placed safely and include, amongst much else, the regulations dealing with the placement of children in care with parents and the regulatory framework for IROs.
• Fostering Services Regulations 2002
• Section 4 Adoption and Children Act 2002 (assessment for adoption support services)
• Adoption Support Services Regulations 2005
Those who propose the reinsertion of these provisions into the Bill, must surely explain, in plain, practical terms, why they might wish to have the power to suspend each of these provisions (and many more). If the answer should be that they would not want to suspend, for example, the staying put arrangements, then they must explain why they, notwithstanding this, seek the power to do something which would be contrary to the best interests of the child. It is a position which seems to defy logic.
I would suggest that no list of safeguards about consultations, purposes and parliamentary approval can save this amendment from the fatal flaw which sits at its very heart; namely that it potentially authorises steps which could not, under any conceivable circumstances, be in the interests of the child. Once it is accepted that there are provisions in the clause’s net which should never be suspended in this way, the whole provision becomes indefensible.
Risk and Informed Consent
The heading of the proposed new clause is significant, saying that it is the ‘power to test different ways of working’. Any test carries with it risks that it may not produce the desired outcome. If that were not the case, the test would not be needed. These tests however, will be carried out on real people; real parents and real children. If we were dealing with a trial of a new drug, this would be hedged about with provisions to ensure that only those who wished to be involved were subjected to the test and that their consent was fully informed, both as to benefits and risks. Such provisions are totally absent from these proposals. How is the seven-year-old child to give a valid consent to the risks of a test? If a local authority obtains an exemption then all the children in its jurisdiction will be the subjects, whether they agree or not. They will have no individual say in the matter.
Our path to the current system for child protection is littered with casualties. Most of the provisions which we now have, are there because children were neglected, injured or died. The state’s track record as a parent is far from unimpeachable. If a test turns out to be misconceived and children are in fact harmed, who will offer them redress? The proposal does not contemplate this and gives no thought to victims. Let us suppose that a child’s IRO is withdrawn and as a result of this the child ‘stagnates’ in an unsuitable placement. That child will, perhaps, have to suffer the consequences of these omissions for the rest of her life. Will anyone give her so much as an apology?
Conflicts of Interest.
The clause completely ignores the inherent conflicts of interest faced by local authorities asking for exemptions under the proposed clauses. In a period of austerity and budget cuts more than ever, local authorities must try to live within massively reduced budgets and ensure the on-going favour and support of the Secretary of State. Anything which helps spread the budget further is going to be greeted like manna from heaven in County Hall. There is a powerful political motivation here to seek exemptions from an administration already favourably inclined, which may well relegate the welfare of the individual child from its proper place, at the heart of the matter.
It is telling that almost all those who have no conflict of interest and are viewing matters solely from the perspective of the child, are opposed to these provisions.
We still have little in the way of specific examples of what it is said local authorities want to be exempted from and why. If there were a genuine, child welfare based, case for these powers, why is the Government not explaining how, if such a provision were suspended, these things could be achieved? Instead, we are left to grapple with vague aspirations and vaguer drafting.
Conclusions
What then of these provisions? Have they been ‘significantly amended’ and even if they have, have the flaws in clause 29 been overcome? I am far from convinced that there has been any significant change.
Careful reading and rational analysis of the new clause reveals it to be more akin to the ‘cut and shut’, dodgy motor car on the backstreet car lot. It has been given a polish, a wheel trim replaced and some tyre-wall black liberally applied. For all that, it is still dangerous. Would you want to see a child of yours riding in it?