England’s bonfire of children’s rights
A new bill threatens decades of carefully drafted laws designed to safeguard and promote the welfare of children in care.
Twelve year-old Dennis O’Neill was pronounced dead on the afternoon of 9 January 1945. A public inquiry by Sir Walter Monckton reported the coroner’s finding that the child had suffered “acute cardiac failure following violence applied to the front of his chest and back while in a state of under-nourishment”.
Dennis had been seen once in six months by a local authority clerk, who recorded after her visit that he looked ill and frightened and kept his eyes to the ground when answering questions.
The coroner criticised the lack of local authority supervision. Foster carers Reginald and Esther Gough were convicted of manslaughter and neglect respectively. Terence O’Neill, aged 11, told the court of the starvation and beatings he and his brother endured, and recounted how Dennis had sometimes been so desperately hungry he would suck milk from a cow’s teat when the Goughs weren’t looking.
In 1946, rules were introduced requiring six-monthly reviews of children in foster care. The duty to monitor individual well-being and progress was later extended to those living in children’s homes, with the requirement to take into account the child’s views added in 1991.
After sustained judicial concern, Parliament passed legislation in 2002 to make local authorities appoint independent persons to lead the review process. Independent reviewing officers must be qualified and experienced social workers and their statutory role includes checking the local authority has informed the children they look after about their rights to make a complaint and access support from an advocate, and helping the child obtain legal advice; they are also duty-bound to consider referring a child’s case to Cafcass (Children and Family Court Advisory and Support Service) when a local authority is failing to meet its legal obligations.
Bonfire of children’s rights
Now, decades of carefully drafted laws designed to safeguard and promote the welfare of children in care are under threat of demolition.
The Children and Social Work Bill, which reaches Report Stage in the Lords next month, contains an extreme measure to absolve local authorities of virtually all of their duties towards vulnerable children. More than 80 years of legislation is affected, encompassing child protection, family support and services to children in care, disabled children and care leavers.
A fast-track procedure will enable local authorities, individuals appointed by ministers, and the education secretary herself, to seek exemptions from duties for up to six years. Parliament will have the chance to block orders, though constitutional convention means this is highly unlikely: the Hansard Society reports only 0.01 per cent of all statutory instruments have been rejected since 1965. Exemption orders will apply to one or more councils, leading to the fragmentation of child welfare law for the first time. Children in neighbouring towns and cities will have different rights. Siblings placed apart could be subject to different legal protection.
No evidence has been offered to show that legislation stifles effective children’s services. On the contrary, research for the department for education discovered, unsurprisingly, that statutory duties had helped to shield services in the face of severe government cuts. The researchers wrote: “statutory responsibilities limited the choices that local councils had available to achieve savings”.
Exemptions will test whether “better outcomes under children’s social care legislation” can be achieved, or the same results reached “more efficiently”.
Isabelle Trowler, the country’s chief social worker for children and families, urges the bill’s many critics to “warm up a bit” and claims “this is not some kind of sinister political plot to overthrow public authorities or a ruse to wipe out decades of children’s rights”. She’s avoided the head-scratching question, though, which is: how can legal duties work better for children when they no longer exist?
Like Trowler, schools minister Lord Nash claims that independent reviewing officers are not necessary in every child’s case. The minister has gone so far as to state that only around 20 of 400 children looked after by North Yorkshire County Council “require regular in-depth reviews”. Latest government statistics show that a third of children looked after by this council who completed a psychological well-being assessment were a cause for concern. That’s 74 children. Borderline scores were reached by a further 38. The official spreadsheets reveal that 255 children are subject to full care orders, meaning a court in each case found the child had suffered (or was likely to suffer) significant harm. Every way you look, the proposition that 95 per cent of looked after children in this local authority can do without full reviews lacks credibility.
The same civil servants who briefed the minister will presumably have responsibility for sifting exemption applications, should the legislation pass. They have not shown themselves to be rigorous.
Schools were given the ‘power to innovate’ in 2002 but only 32 exemptions were made in seven years and 97 per cent of institutions managed without them. The department for education reflected some years later that schools “often discover that the Power is rarely needed as the necessary freedoms and flexibilities already exist”. Legislation was not a barrier to creativity, after all.
Deregulation without consultation
Unlike exemptions from education law, the bill before parliament empowers Whitehall to spearhead social care deregulation, independent of the wishes of local communities, children’s services professionals or councillors. Individuals sent by ministers into struggling local authorities will be able to seek exemptions after consulting locally. No such consultation duties are ascribed to the secretary of state or her nominated person. The children’s commissioner for England and Ofsted’s chief inspector will be asked their views prior to the drafting of regulations removing duties, but without any power to halt the process and there is no requirement to publish their advice.
Moreover, there is a large question mark hanging over the appropriateness of such a task for the children’s commissioner, whose primary statutory function is to promote and protect children’s rights.
Education exemptions may have proven to be unnecessary, but they were followed by Michael Gove’s free schools programme. Since legislation was passed in 2010 all schools in England can apply to become academies, which are independent of local authorities and receive their funding direct from central government. Weeks before Justine Greening MP was appointed new education secretary, her predecessor was forced to backtrack on the government’s plan to compel every school in the country to become an academy by 2022.
A vision for children’s social care, published in July, declares the government’s ambition that more than a third of local authorities will be delivering (or preparing to deliver) their children’s services through a trust or other legal entity by 2020.
Are children’s legal entitlements to care and protection collateral damage in an ideological project to remove children’s services from local council control? You don’t have to believe in sinister plots to ask this question.
Who needs social workers?
The level of risk involved in deregulating social care is exponentially higher than in education. It interferes with human rights in a way that tinkering with school rules doesn’t. The most frequent type of education exemption involved a slight modification to the school day. Deregulation plans being mooted in social care include withdrawing independent reviewing officers and disbanding panels that provide vital safeguards in fostering and adoption.
There has even been the suggestion that children in foster care could manage without social workers.
The law as it stands requires that children who have lived in a foster home for 12 months or more can be visited by a social worker as little as twice a year, with the child’s agreement. This skeleton service was made possible through regulations introduced last year, which slashed the minimum number of yearly visits from four to two. Exemptions could reduce this to nil.
Andy Elvin, chief executive of TACT fostering and adoption charity, says he would like to pilot children in long-term foster care not having their own social worker, when this accords with the child’s wishes.
I spent 12 years working directly with children in care and the most common refrain about social workers was that they didn’t visit often enough. One girl persisted to the highest level of the council’s complaints procedure in order to have a female social worker. She told me she had lost trust in men after being raped in her family, so she hardly spoke to her male social worker. Eventually the local authority was forced to do the right thing. (In case you’re wondering, the right to make a complaint could be exempted too).
Allowing a competent child to decide not to have a social worker could be construed as progressive and respectful. But this presupposes social workers have the time and the inclination to be constantly visiting children who don’t need their help. This just doesn’t happen. Moreover, Elvin’s trial of a handful of children in an area not having their own social worker (foster carers would still have one) would be so dependent upon individual circumstances, that the results would not be transferable to the wider population of looked after children.
We must do better
Those children who have had very poor experiences of social workers may, understandably, want nothing more to do with them. We can, and must, do better for children in these situations. As Elvin’s charity states in its guide for children, social workers “make sure you are OK, so you should think of them as someone who is there to help you”. The charity’s advice to young people is: “Please let your social worker know if you think someone is taking away any of your rights”.
Children may fear electing to hold onto their social worker will be perceived by carers as an act of disloyalty or ingratitude. A small number could be punished for such a decision. Research undertaken for the National Society for the Prevention of Cruelty to Children found that each local authority in England has an average of three confirmed cases of child abuse in foster care every year, slightly higher than in residential care.
Post-Savile, we should be doing everything possible to safeguard children who, for whatever reason, find it difficult to speak out about abuse. Rather than stripping back the law, it would be in children’s interests to focus energies on developing the skills and approaches of social workers, so the minimum two visits a year are experienced as helpful and enjoyable by all children. Putting the onus on children to ‘choose’ whether or not to have this basic safeguard is a betrayal of adult responsibility.
So too is branding deregulation as innovation, and pretending vulnerable children will get more with less. Social care exemptions are a unilateral break with the postwar professional and political consensus that vulnerable children need the law behind them. They require us to abandon lessons learnt from past inquiries and investigations into institutional abuse and the necessity of robust, universal safeguards. In concluding his four-month inquiry into the death of Dennis O’Neill, Monckton observed: “the duty to be sure in the care of children must not be put aside however great may be the pressure of other burdens”.
This radical legislation was drafted in haste, without public consultation or manifesto pledge.
Article 39 is a small charity set up in 2015 to promote and protect the rights of children living in institutional settings. We have joined forces with nearly 40 leading organisations and individual experts to reject this part of the Bill, which is to be debated again in the Lords in October 2016. Then the legislation goes to the Commons, though officials are already assessing proposals for exemptions. Now is the time to voice concerns loudly and clearly. Education secretary Justine Greening, appointed in July 2016, had nothing to do with drafting this Bill. We have to hope she will very soon disown this part of it.
Keep up-to-date on the Bill, and add your name to those opposing the exemption Clauses, via the ‘Together for Children’ site.
Find the Monckton Report in two parts here and here: Report by Sir William Monckton KCMG KCVO MC KC on the circumstances which led to the boarding out of Dennis and Terence O’Neill at Bank Farm, Minsterly and the steps taken to supervise their welfare, Home Office, May 1945.
This article also appeared on Open Democracy here.