A judicial review into the legality of a government document, which solicitors argue could deprive children and young people of “fundamental support and protection”, has been launched.
Legal experts from the Simpson Millar solicitors’ firm have, on behalf of charity Article 39, confirmed legal action against the Department for Education (DfE) to remove the document from circulation due to fears it could lead to local authorities acting unlawfully.
The ‘myth busting’ document was published last year on the DfE’s Children’s Social Care Innovation Programme website. It caused immediate disquiet among social work and children’s rights organisations, with 50 writing to the children’s minister Nadhim Zahawi urging the removal of parts of the document.
The minister, however, defended it. 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”.
A judicial review was threatened in January 2019 and has now been launched.
‘Inconsistencies with the statutory framework’
The key points within the document that Article 39 is challenging are:
- Social workers do not have to lead assessments of children who automatically gain ‘looked after’ status and protections when remanded to custody;
- Councils do not have to offer a return home interview to children who have run away or gone missing;
- Councils do not have to appoint separate social workers to foster carers and children in long-term placements;
- Personal advisers appointed to advise and support young people leaving care can take on the local authority’s duties in respect of ‘Staying Put’ arrangements – where 18 to 21 year-olds can continue living with their foster carers;
- Social workers only have to make one visit a year to foster carers looking after a child for more than a year;
- Social workers can decide to visit children in long-term foster placements as little as twice a year.
Carolyne Willow, director of Article 39, said it was “deeply regrettable” the document had not been withdrawn despite “inconsistencies with the current statutory framework” being set out.
“This document overwrites key obligations within our children’s social care system, which were crafted over many years and subject to detailed public consultations.
“The protections the guide presents as mythical exist in our legislation and statutory guidance because of the real needs of real children and young people,” Willow said.
Oliver Studdert, a solicitor at Simpson Millar, warned that if local authorities followed the guide they would “be denying fundamental support and protection, set out in law, to large numbers of children and young people in need”.
Community Care has contacted the DfE for comment.