New government powers to test new ways of working in children’s services could allow councils to duck child protection duties and damage children’s rights to support, campaigners claim.
Article 39, an organisation that campaigns for children’s right in institutional settings, issued the warning about measures included in the Children and Social Work Bill that allow ministers to grant councils freedom from certain pieces of social care legislation for three years, with an option of a further three year extension.
Clause 15 of the bill said the freedoms apply to:-
- 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: this covers the management of social services functions
- Sections 23C – 24D of the Children Act 1989: which cover how local authorities work with care leavers
- The Children Act 2004: which includes how children’s services in England are governed and inspected
- ‘Subordinate’ legislation to those three acts
The exemption of schedule 1 of the Local Authority Social Services Act 1970 includes “any legislation specified”, such as the Children Act 1989. Explanatory notes published alongside the bill define social care legislation as “all the enactments which govern how local authorities safeguard and promote the welfare of children and those leaving care, for example the Children Act 1989, the Adoption and Children Act 2002 and the Children Act 2004”.
Carolyne Willow, a social worker and director of Article 39, warned this could remove all of children’s social care rights and replace them with new ones.
“It has to be assumed that somewhere in government there has been a conscious decision that in principle the whole of social care legislation related to children could be surrendered, otherwise they would have tightly prescribed just certain aspects of the legislation.”
She said the Children Act 1989 was still regarded as the “golden piece” of legislation and the changes in the social work bill could “introduce a whole new notion of rights and obligations”.
“You have rights and obligations that are protected by law, and there are another set of rights and obligations that are given to local authorities and trusts by the secretary of state. [This is done] through a process that doesn’t allow a lot of scrutiny at a local level and through parliament.”
Examples of how freedoms could be used include child protection investigations, where a local authority or organisation could ask for a different threshold or reason for intervening, said Willow.
“Presumably they would make an argument to government that ‘for three years we are going to provide a better service but it would be hampered if we had this legal duty, so please can we surrender this legal duty while we test out a new type of service’,
“It presents a massive threat to children’s social care rights.”
The move is part of the government’s agenda to test different ways of working. The bill says the exemptions will allow local authorities to do this “with a view of achieving better outcomes under children’s social care legislation or achieving the same outcomes more efficiently”.
Any new ways of working via exemptions from children’s social care legislation would still be bound by other bits of law, such as human rights and case law.
Willow also warned that the changes in the bill could make social care “more appealing” to third party providers, including private companies.
“If they could test running services and functions of the statutory bodies right now without having the legal duties then obviously they would be more attracted,” she said.
The Department for Education said it was too early to comment on the specifics of the bill and said a consultation process would allow opinions to be expressed in due course.