During May 2016, the House of Lords began the first reading of the Children and Social Work Bill (see Legal update, Children and Social Work Bill first reading in House of Lords). The Bill was introduced following a programme of suggested reforms set out in the government’s July 2016 policy paper Putting children first: our vision for children’s social care and the government’s policy to promote the safeguarding of children through the provision of relationships and relationships and sex education.
The Bill received Royal Assent on 27 April 2017 and is now known as the Children and Social Work Act 2017 (CSWA 2017). The only provisions that are currently in force are section 65 (the power to make transitional provision) and Schedule 1 which sets out the provisions for placing children in accommodation elsewhere in Great Britain; those provisions came into force on 28 April 2017. It is not clear when the other provisions will come into force.
Purpose of the CSWA 2017
The explanatory note to the CSWA 2017 explains that the main purpose of the legislation is to:
- Improve decision making and support for looked after and previously looked after children in England and Wales.
- Improve joint work at the local level to safeguard children and enable better learning at the local and national levels to improve practice in child protection.
- Promote the safeguarding of children by providing for relationships and sex education in schools.
- Enable the establishment of a new regulatory regime specifically for the social work profession in England.
Summary of the provisions
Corporate parenting principles (section 1)
Section 1 of the CSWA 2017 establishes a set of principles aimed at bringing the focus back to the looked after child. It reminds the local authority (LA) what it means to be a “corporate parent”. Section 1 applies to the whole LA and not just children’s services.
The corporate parenting principles in section 1 apply to:
- Children who are looked after by a LA pursuant to section 22(1), Children Act 1989 (CA 1989).
- Relevant children (section 23A, CA 1989).
- Young people under the age of 25 who are relevant children (section 23C(1), CA 1989).
Section 1(1) of the CSWA 2017 provides that LAs carrying out their functions in relation to children and young people mentioned in section 1(2) must have regard to the need to:
- Act in their best interests and promote their physical and mental health and well-being.
- Encourage them to express their views, wishes and feelings.
- Take into account their views and wishes and feelings.
- Help them to gain access to and make the best use of services provided by the LA and its relevant partners.
- Promote high aspirations and seek to secure the best outcomes for them.
- Ensure they are safe, and have stability in their home lives, relationships and education or work.
- Prepare them for adulthood and independent living.
Local offers for care leavers (section 2)
The LA must publish information about:
- Services that the LA offers to care leavers.
- Any other services the LA offers that may assist care leavers in preparing for adulthood and independent living. This includes services relating to health and well-being, relationships, education and training, employment, accommodation and participation in society.
Advice and support (section 3)
Section 3 of the CWSA 2017 inserts a new section 23CZB into the CA 1989, which extends services to former relevant children up to the age of 25, even if the former relevant child is not in education or training. If the former relevant child informs the LA that he or she wishes to receive advice and support, the LA must:
- Provide a personal adviser until the former relevant child reaches the age of 25.
- Conduct an assessment of the former relevant child’s needs with a view to determining:
- whether any of the services offered by the LA may assist in meeting his or her needs, and if so, what advice and support would be appropriate for the LA to provide for the purpose of helping the former relevant child to obtain those services.
- preparation of a pathway plan unless the young person clearly does not wish to have one.
This assessment (known as a section “23CZB(5) CA 1989 assessment”) can be carried out at the same time as the pathway plan.
Duty of LA in relation to previously looked after children (section 4)
Section 4 imposes a duty on LAs to provide advice and information to each relevant child educated in its area, for the purposes of promoting their educational achievement. A “relevant child” for the purposes of this section is a person who was looked after by the LA or another LA but who ceased to be looked after as a result of a child arrangements order, a special guardianship order, or an adoption order.
Designated staff member for previously looked after pupils in maintained schools and academies (sections 5 and 6)
The CWSA 2017 imposes new requirements for governing bodies in maintained schools (section 5) and academies (section 6), to designate a member of staff as having responsibility for promoting the educational achievement of previously looked after pupils in those schools.
Guidance for staff member for looked after pupils in maintained schools (section 7)
Governing bodies of maintained schools in England, must ensure that the designated staff member for looked after pupils has regard to guidance issued by Secretary of State (SoS).
Care orders: Permanence provisions (section 8)
Section 8 of the CWSA 2017 amends the definition of “permanence provisions of a section 31A care plan” in section 31(3B) of the CA 1989, so that it now means such of the plan’s provisions:
- Setting out the long term plan for the upbringing of the child that includes any of the following:
- the child to live with a parent or wider family;
- adoption;
- other long term care provision.
- That set out any of the following:
- the impact on the child concerned of any harm that he or she suffered or was likely to suffer;
- the current and future needs of the child (including needs arising out of that impact);
- the way in which the long-term plan for the upbringing of the child would meet those current and future needs.
For more information, see Practice note, Care and supervision orders: care plans.
Adoption: duty to have regard to relationships with adopters (section 9)
Section 1(4) of the Adoption and Children Act 2002 (ACA 2002) lists the matters the court and adoption agencies must have regard to when reaching decisions relating to the adoption of a child. Section 9 of the CSWA 2017 amends section 1(4)(f) of the ACA 2002 so that the court is also required to have regard to the views of any prospective adopter with whom the child is placed.
Placing children in secure accommodation elsewhere in Great Britain (section 10 and Schedule 1)
These provisions make a number of amendments to the Children Act 1989 so as to permit LAs in England and Wales to place children in secure accommodation in Scotland. Schedule 1 also clarifies the existing provision for placement by LAs in Scotland of children in secureaccommodation in England and Wales. For more information, see Practice note, Placing a child in secure accommodation.
Child Safeguarding Practice Review Panel (sections 12 and 13)
Section 12 of the CSWA 2017 requires the SoS to establish a panel to be known as the Child Safeguarding Practice Review Panel, and sets out the arrangements for membership of the panel.
Section 13 sets out the functions of the panel which, in accordance with regulations made by the SoS, are to:
- Identify serious child safeguarding cases in England which raise issues that are complex or of national importance.
- Where it considers appropriate, to arrange for such cases to be reviewed under the panel’s supervision.
Local arrangements for safeguarding and promoting welfare of children (sections 16 – 22)
These provisions amend the safeguarding provisions in the Children Act 2004 and set out requirements for the safeguarding partners for a LA area in England, to make arrangements the safeguarding partners, and any relevant agencies that they consider appropriate to work together in exercising their functions. The arrangements must include arrangements for the safeguarding partners to work together to identify and respond to the needs of children in their area.
Child death reviews (sections 24-28)
These provisions introduce duties for child death review partners to review the death of any child in its area; they can also make arrangements to review the death of a child that is not normally resident in the area.
Education relating to relationships and sex and PHSE education (sections 34-35)
Section 34 of the CWSA 2017 requires the SoS to make regulations requiring the provision of:
- Relationships education to pupils in primary schools.
- Relationship and sex education to pupils of secondary education at schools.
The SoS may also make regulations requiring the provision personal, social, health and economic education (PHSE).
These provisions will ensure that pupils learn about safety in forming and maintaining relationships, the characteristics of healthy relationships and how relationships may affect physical and mental health and wellbeing.
Education relating to relationships and sex and PHSE education (sections 34-35)
Section 34 of the CWSA 2017 requires the SoS to make regulations requiring the provision of:
- Relationships education to pupils in primary schools.
- Relationship and sex education to pupils of secondary education at schools.
The SoS may also make regulations requiring the provision personal, social, health and economic education (PHSE).
These provisions will ensure that pupils learn about safety in forming and maintaining relationships, the characteristics of healthy relationships and how relationships may affect physical and mental health and wellbeing.
Social Work England (sections 36-64 and Schedule 3)
The Health and Care Professions Council (HCPC) is to be abolished and a new body called Social Work England will be established.
Section 37 of the CSWA 2017 sets out the over-arching objective of Social Work England, which is to:
- Protect, promote and maintain the health, safety and well-being of the public.
- Promote and maintain public confidence in social workers.
- Promote and maintain proper professional standards for social workers in England.
Amendments to the Mental Capacity Act 2005: Approval of courses for approved mental health professionals and best interests assessors (sections 48 and 49)
Section 48 of the CWSA 2017 allows the SoS through regulations, to amend section 114ZA of the Mental Health Act 1983 approval of courses for approved mental health professionals in England.
Section 49 amends paragraph 130 of Schedule A1 to the Mental Capacity Act 2005 (deprivation of liberty), to allow training in connection with best interest assessments to be specified by Social Work England or the SoS. For more information on deprivation of liberty, see Practice note, Deprivation of liberty and mental capacity: overview.
Implications of the CSWA 2017 for LAs
The CSWA 2017 heralds a number of significant changes and implications for LAs.
Financial and resource implications
The majority of the provisions in the CWSA 2017 are not yet in force. However the first major potential implication is the financial burden on LAs, as the requirement to provide advice and support, a personal advisor and a pathway plan now appears to extend to young persons up to 25 who are not in education or training. The legislation also affects children who are present in the UK but have no recourse to public funds. Whilst it is envisaged children that fall within this provision will be caught by section 54 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (NIA 2002) (which provides a list of services the local authority is permitted to exclude for certain groups of migrants such as who are unlawfully in the UK), it does not include the wider band of persons, who have an embargo on access to public funds, but have valid claims for leave to remain and who therefore are not caught by Schedule 3 to the NIA 2002. For more information about the classes of excluded persons under Schedule 3, see Practice note, Local authority support for adults with no recourse to public funds: Schedule 3 to the Nationality Immigration and Asylum Act 2002.
The Court of Appeal in SO v London Borough of Barking & Dagenham [2010] EWCA Civ 1101 (see Legal update, Court of Appeal considers local authority duties to formerly relevant children) decided that section 23C(4)(c) of the CA 1989 encompassed the provision of accommodation. Therefore, many of these young people with no recourse to public funds are provided with accommodation under section 23C(4)(c) by the LA. Section 23C(4) of the CA 1989 continues to apply to young people up to the age of 21 and the CWSA 2017 does not repeal or change those provisions. However the CSWA 2017 now extends the application of section 23C(4) to young people between the ages of 21 and 25. It is no coincidence that following the debates in the House of Lords, the wording of the new section 23CZB(5) is more explicit, in that section 2(2) of the CSWA 2017 is clear that services that may assist care leavers, includes services relating to accommodation. I believe it is clear (and, I believe clearer than the wording in section 23C(4) of the CA 1989 that preceded it) that accommodation is a service a LA can consider providing, if it considers the young person requires it.
In the same way that the “well-being principle” is at the heart of the Care Act 2014 (see, Practice note, Care Act 2014: an introduction: Individual well-being), the “corporate parenting principles” is the heart of the CSWA 2017. Although the principles do not add anything new to LAs’ duties, it does bring the young person back into focus and attempts to bring the corporate parent in line with a biological parent. In practical terms, nothing much should change and this principle in itself does not herald a massive change in practice. In theory, LAs should have been working with these principles in mind in any case. However, some LAs whose focus may have shifted in recent years may need to revisit their policies and procedures to ensure compliance with the corporate parenting principles. The discussions in the House of Lords noted that LAs, being one of the biggest employers, should do more to secure employment for those children it “parents”. This appears to make sense and it is recognised that some LAs do more than others to create opportunities for their care leavers.
The CSWA 2017 also has the effect of imposing a further responsibility on LAs in relation to children who are being educated within the LA area and who may have been looked after by another LA.
New arrangements for regulating social workers
Another fundamental change for LAs is the abolition of the HCPC and the establishment of the Social Work England, a body that will regulate social workers. It is envisaged that through further regulations and statutory guidance, the whole process of education, training and qualification of social workers will be revamped with the ambition to develop and regulate the workforce into different specialisms and different levels of seniority for example. The ambition is that the social work profession will be regulated by a specialist regulator in order to raise standards while giving the regulator powers to tackle poor performance. The CWSA 2017 will also introduce changes to courses for mental health professionals and best interests assessors.
Only time will tell what this new regulatory body will look like and how it will be formed. It is envisaged that here will be a further set of secondary regulations and guidance that will provide the meat to these proposals and so at this stage, it is a case of “watch this space”.
Comment
The changes are a welcome shift in focus back onto the child who has had tough time in childhood, and who has suffered the kind of trauma that most people cannot even begin to imagine, and quite rightly so. Young care leavers who are not in education and training clearly need more support during their early adulthood that those who may have decided to remain in education and training. However it begs the question as to how the extra obligations will be funded. That aspect does not appear to have been considered during the debates on the CSWA Bill and remains unanswered.
Secondary regulations and statutory guidance for the CSWA 2017 have not yet been published, and as such there is more to expect in relation to this new legislation.