There is a ferocious battle going on among individuals who have
dedicated their professional lives to protecting children. On one side
are well-performing children’s services departments, which believe the
law can be an impediment to more effective and efficient ways of
working. On the other are children’s rights campaigners, some social
workers, family lawyers and senior social work academics, who view with
horror the prospect of hard-fought-for laws upholding children’s rights
being being made to disappear by the secretary of state.
At the centre of this struggle is the government’s
children and social work bill,
which proposes allowing councils to request specific exemptions from
legislation and statutory guidance so that they can “innovate” to
improve children’s experience of being looked after or, and with perhaps
somewhat less lofty ambition, achieve “the same outcomes more
efficiently”. Opponents fear the bill is a way of skirting difficult
problems caused by funding cuts and social worker recruitment and could
even lead to children’s social care being outsourced and privatised.
The bill being debated in the Lords on Tuesday proposes that a
director of children’s services could ask the secretary of state to
suspend part of a statute or guidance so social workers in that area
could, for up to six years, try out an idea they believe would benefit
children but that would, at present, be against the law.
Examples floated by ministers and other supporters of the bill
include: removing the statutory requirement for an independent reviewing
officer to carry out six-monthly care plan reviews; asking children in
care whether they want to continue to have a social worker; removing the
demand for foster carers of children in settled placements to write a
daily log of what has happened in a child’s life; and removing the
“looked-after” status of children who end up in custody, which would
also mean they lose the rights that status confers. The last is a
suggestion that Lord David Ramsbotham, former chief inspector of prisons
and one of the peers opposing the bill, says he deplores.
“I would abor removing the care status of all children in custody,” he says.
Some social work leaders are frustrated with aspects of the child
protection system, which they feel stifles innovation and can lead to a
high turnover of staff. So they are irked and baffled by children’s
rights campaigners’ opposition to the bill.
Carolyne Willow, director of the Article 39 charity, which fights for
the rights of children living in institutional settings, is leading
Together for Children,
a group of some 40 organisations – including the Care Leavers’
Association, Liberty and the Howard League for Penal Reform –
campaigning against the bill.
“It is a breathtaking outrage,” she says. “It’s no good being swayed
by kindly sounding voices and people who say they want to do right by
children. These are the laws that protect children who have been through
horrific experiences and who are in dire need. Without [statutory]
duties, my experience is that local authorities do not have the
capacity, funding or mindset to provide for children or vulnerable care
leavers.”
As a social worker of 30 years standing, Willow says that when a
council has failed to provide good care, the one thing she has been able
to offer a child is recourse to the protections of the law. “Without
legal obligations, she says, “
we are back to before the second world war,
where we were relying on individual goodwill or professional discretion
and where families had no call [as of right] on the state.”
At the Association of Lawyers for
Children,
Martha Cover, a barrister and children’s rights specialist, warns:
“More than ever before they [councils] are driven by the need to protect
their resources and their reputations. This is unsurprising given the
40% reduction in their budgets over the last few years, and the public
willingness to blame social workers whenever a child is killed.”
Unusually, there was no consultation (such as a green paper) before the bill was
presented in the Lords in May. Its main cheerleader, Isabelle Trowler, chief social worker for children and families, has
tabled a government amendment to the bill this week, at the report stage,
to quell fears that it is a Trojan horse designed to open up children’s
services to privatisation. Her action suggests the government is
worried about the scale of opposition. Shadow children’s minister
Emma Lewell-Buck has vowed Labour will fight against the bill’s “exemption” clauses allowing councils to opt out of sections of the
1989 Children Act.
Trowler has made it clear the government wants social workers to be
able to exercise their professional judgment without too many rules
getting in their way. “[Now, ]what the bill will hopefully enable us to
do is where authorities request that [exemptions], they can innovate and
do things differently,” she said earlier this year.
Three local authorities have publicly embraced the bill: Leeds,
Hampshire and Lincolnshire. All have children’s services designated by
Ofsted as at least “good” and elements rated “outstanding”, which is
presumably why they feel they have earned the right to be trusted when
they judge that parts of the legislation are not working for children
and want to try alternatives.
“I’m seeing some of the best social work in Lincolnshire I’ve seen in
my career. And we’ve shoehorned that into current legislation. With the
opportunity to innovate, we could achieve something fantastic,” says
Stuart Carlton, assistant director of children’s services at
Lincolnshire county council.
“Under the current legislation and guidance, where things aren’t
working well, children’s rights are being let down anyway,” he says. “So
why are we so opposed to allowing good local authorities try something
out? I understand the concerns: there need to be really good safeguards,
but this could be a once in a lifetime opportunity to put the child
right at the centre of everything we do.”
In Hampshire, director of children’s services Steve Crocker says it is
vital the social work profession is not limited by an imperative to
practise in a way that is “frozen in time” by laws passed more than a
decade ago. “If you only build up more legislation and regulation, why
are we surprised that social workers are leaving the profession at the
rate that they do?” he asks. “Nobody’s saying, take away all the
regulation. It would only be very specific parts. It’s about suggesting
tweaks to what highly skilled people do.”
Crocker insists a way has to be found “to safely experiment that will
help us all in the sector in future”. Underlying at least part of the
enthusiasm for the potential freedoms contained in the bill seems to be
immense frustration that child protection social work is minutely
scrutinised by Ofsted and then savagely blamed in public when something
goes wrong. The latter scenario typically leads to more legislation, and
tighter prescription of what a social worker should do, how it should
be done, and by when.
“I do think there’s a debate to be had about whether we aren’t
massively over-regulated and over-checked in terms of our practice,”
says Dave Hill, president of the Association of Directors of Children’s
Services. “There’s an underlying issue of trusting professionals to do
the best thing for children. [These clauses] would give us space to
work. I can’t see millions of downsides.”
Yet
lessons from Cornwall
suggest that attributing poor practices to stifling over-regulation
could be a red herring. The council has turned around a poorly
performing children’s service over the past six years by rebuilding
confidence and stability in the system through listening to families and
children, reducing caseloads and better engaging with social workers.
Kathy Evans, chief executive of charity Children England, says she
would be up for a thorough overhaul of the factors that impede social
workers in their efforts to care for children and families. “But to do
that does not warrant putting all child protection and care legislation
and guidance up for grabs,” she says. If a child in custody with no
social worker ends up having their rights breached, where are they to
seek justice if the very law intended to protect them has been locally
disapplied.
“There is no explanation so far about how a child in an exempted area
might be able to challenge or complain. I have no lack of respect or
sympathy for local authorities – but with the best of professional
intentions, you can miss what an exemption could mean for a child.”
The job of a child protection social worker is so difficult that many
last only a few years in frontline practice. Those supporting the bill
believe the attrition rate is precisely because of the overwhelming
demands of detailed statutory guidance. But opponents of the bill are
not convinced.
“Local authorities must be held to account by the law which protects
children’s rights,” says Cover. “Even with the existing framework in
place, poorly performing local authorities regularly fail to carry out
their duties to children. The law reports of care cases demonstrate this
with depressing regularity.”
