DfE threatened with judicial review over children’s social care ‘myth-busting’ document

Article 39 demands 'misleading' publication about local authority duties towards vulnerable children be withdrawn

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A charity has threatened the Department for Education with legal action if it does not withdraw a ‘misleading’ document about how local authority duties towards vulnerable children can accommodate new working practices.

Article 39, which was among the signatories of an open letter last September challenging the ‘myth-busting’ guide, wrote to the secretary of state for education Damian Hinds this week warning of its intent to seek a judicial review.

In the wake of last September’s letter, children’s minister Nadhim Zahawi defended the document, which is published on the DfE’s Children’s Social Care Innovation Programme website. He said it aimed to “help practitioners provide targeted support for children and families”, and “does not seek to change anything in the current statutory framework for children’s social care”.

But campaigners, who have sought advice from legal experts, argue that it contains numerous errors and misrepresentations of the statutory children’s social care framework.

Oliver Studdert, a partner in public law at the Simpson Millar solicitors’ firm who is representing Article 39, said: “By seeking to redefine a number of statutory safeguards as ‘myths’, the DfE’s ‘myth busting document’ removes essential protection for many vulnerable children and young people in care and leaving care.”

Ofsted conflict

One key sticking point in the row over the guide has been around whether children in long-term placements and their foster carers should each have their own social worker.

In February 2018, the government-commissioned independent review of foster care proposed that councils should have the discretion to assign a single social worker to reduce intrusion on foster families and make savings.

The myth-busting document acknowledged potential risks inherent in this but said the DfE would “explore creative approaches to practice delivery with a small number of local authorities to consider where and how this approach could work”.

But opponents say that having a single social worker would be an incorrect application of the statutory framework, citing how Children’s Act statutory guidance sets out distinct duties for the fostering and children’s social workers.

In a statement accompanying its warning of legal action, Article 39 said requests made under the Freedom of Information Act had revealed that Ofsted disagreed with the innovation programme’s stance – but that the DfE published anyway.

“The interpretation of all local authorities to date of the statutory guidance is to have two social workers – one supporting the child and the other the foster carers,” the regulator is quoted as saying. “[Reducing this to one would be] removing a significant safeguard for children in foster care.”

‘Not good enough’

A document published in November lists a host of other points on which Article 39 and its lawyers will argue that the DfE’s guide is inaccurate.

These include the minimum frequency of social workers’ visits to children in various situations, and the requirement to conduct independent return-home interviews for missing children.

Referencing Zahawi’s defence of the myth-busting guide, Carolyne Willow, Article 39’s director said: “It is not good enough for the minister to say there have been no changes to the law and statutory guidance while at the same time leaving in circulation a document which indicates otherwise.

“Council duties towards vulnerable children cannot exist and not exist at the same time,” she added.

A DfE spokesperson said: “We have received the pre-action letter and will be responding in due course.”

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