By Julie Doughty, lecturer at the School of Law and Politics, Cardiff University
The Social Services and Wellbeing (Wales) Act 2014 is a major piece of legislation that will shape the future of adult social care provision in Wales. But there is a danger that the impact of changes to children’s services, which hover on the periphery of this law, will be overlooked, while priority is given to promoting the main purpose of the act.
This purpose is to tackle the imminent rationing of local authority services for older and disabled people. What’s receiving less attention is the way the new act fragments the Children Act 1989, by removing local authority duties to children in need and looked-after children from a legislative framework that has been in place for the last 25 years.
As the judge in a High Court adoption hearing in Swansea recently pointed out: ‘Family law is not devolved to the Welsh Assembly’. But children’s social care is devolved and we are beginning to see the gradual unravelling of the unified concepts created by the 1989 act. The holistic integration of powers and duties to promote welfare, from children in need through to child protection and grounds for court intervention, is now disrupted.
The 2014 act will repeal part three of the Children Act 1989 in Wales, including the long-standing definitions of children in need and children with disabilities. Assessing and meeting the needs of children becomes part of the homogenous new act. So, no more section 17 in Wales. Assessment of needs is on the ‘can and can only’ eligibility test.
‘Quite an adjustment’
Equally radical, it would first appear, is the repeal of all provisions about looked-after children. This is not quite as it seems, because all of section 20 (of the 1989 act) onwards are re-stated in various new sections in part six of the 2014 act. Not in the same chronological order, though.
The amendments to the 1989 act, which were made back in 2008 under the Children and Young Persons Act (brought in by 2010 in England) will now be implemented in Wales. So on the one hand, there will be less divergence between the two countries. But all the statutory references will have different numbers, which is quite an adjustment for Welsh judges and practitioners.
This is now the opportunity for all the old 1991 Children Act guidance to be updated in Wales, as it has been England. The new Wales guidance is termed ‘codes’, which supplement new sets of regulations. The draft code for part six and looked-after children is out for consultation until 31 July; it is more than 160 pages long.
There are some positives. There is specific guidance on supporting unaccompanied young asylum-seekers, for example. The chapters on care leavers, although lengthy, are clear and detailed and have adopted more comprehensible terminology than in the act itself.
In contrast, the code is surprisingly sketchy on independent reviewing officers, especially in light of their strengthened role and the considerable research on the development of their role in England. People working with children with disability may be expecting more – on the provision of short breaks, for example.
There is also silence on two of the biggest practice issues currently facing children’s social workers – how to use section 20 (soon to be section 76) and how to manage contact.
With intensifying judicial criticism of local authorities accommodating children under section 20 before issuing care applications, we badly need guidance on thresholds for intervention and permanence planning when ‘voluntary’ care is genuinely in the best interests of the child.
Agreeing and promoting contact between looked-after children and their families, especially siblings, is another problem area for social workers and foster carers, where sound evidence–based guidance could now be developed. It is disappointing that these crucial topics have not been addressed in the guidance.
‘Not to be missed’
Even skimming through 169 pages of a document that is not yet in final form is a big ask for hard-pressed social workers and policy advisers. Coordinating the implications of this draft guidance with that earlier issued on assessment of needs, and that yet to come on safeguarding, is also a challenge.
However, if this opportunity to get meaningful guidance in place is not to be missed, it is vital for those most directly involved to engage with the consultation process.