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3rd Edition, May 18th, 2020 Robin Sen

Entitled to special protection and assistance?

A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.  

Article 20, UN Convention on the Rights of the Child (UNCRC) (Bold and italics added)

There can be little debate about the moral legitimacy of Article 20 of the UNCRC: where a state is legally entrusted with the care of children it should have enhanced duties towards them. Yet, on 24 April, Statutory Instrument 2020/445 (‘SI445’) made 100 changes removing a number of the ‘special protections’ the UK state had previously legally mandated for children in care in England, in the middle of a pandemic. Amongst the reductions in procedural safeguards are the removal of set timescales for most social worker visits to children in care, the removal of the timescale on six monthly care review meetings, the loosening of the requirement for Independent Visitors to visit children’s homes, the removal of timescales for Ofsted to undertake inspection visits to children’s homes which have been graded as inadequate and requiring improvement, and the softening of skills and qualification requirements for staff in children’s homes. 

The Department of Education (DfE) has offered the reassurance that where there are ‘safeguarding concerns’ timescales and some other procedural safeguards will still apply. This disregards that the safeguards which SI445 removes are mechanisms for identifying concerns about children’s welfare in the first place. A resultant aspect of these changes is therefore that, if the welfare of a child or young person in care is compromised as a result of them, we may never find out. Some of the safeguards removed by SI445 also provided important opportunities for resolving difficulties before they developed into more serious safeguarding concerns. That such safeguards are needed is long established, and was reaffirmed in a painstaking government commissioned review of safeguards for children living away from home in England and Wales, People Like Us (Utting, 1997). The review itself followed numerous documented cases of abuse and mistreatment of children living away from home, in a variety of settings. Now, some of those safeguards have been removed with the most hollow of consultations. The DfE specifically avoided consulting with the Children’s Commissioner for England about proposals for the changes. Her office has a statutory role to represent the views and needs of children, particularly ‘vulnerable’ children. The Commissioner has subsequently called for SI445 to be revoked. She is joined in this call by her two predecessors in that role. 

The Government has stated these measures will be temporary. However, there is no set date for them to end. Three times since 2017 UK governments have tried to reduce similar safeguards for children in care in pre-Covid times, and only once was this via a transparent process which allowed for Parliamentary scrutiny. On each occasion they failed. Under the cover of Covid, this government has succeeded, for now. It did so by forcing SI445 through without opportunity for the minimum 21 day Parliamentary scrutiny which constitutional convention states should be given to a Statutory Instrument. It claimed that to wait these three weeks would have put: ‘extraordinary pressure on local authorities, providers and services to try to meet statutory obligations’. They provided no evidence to support this claim.

Undoubtedly, the pandemic will place different, and perhaps greater, demands on children’s services. There are reports that there have been significant increases in incidences of domestic violence during the lockdown; there are also concerns that referrals to children’s services will substantially increase once the lockdown is lifted. Some service managers and social workers are worried that their services may be overwhelmed by the demand. These are entirely understandable concerns. Let’s also be clear that there is no evidence that children’s services are currently being overwhelmed: the Independent Children Homes Association (ICHA), which represents over half of all children’s homes in England, reported that staffing levels were at 95% and that homes were coping well; and Jenny Coles, President of the Association of Directors of Children’s Services, reported that referrals to children’s services were substantially down.

What is more, if the predicted rise in demand does materialise, then there should be open discussion about why the rights of children in care should be the sacrificial lamb which is offered in order that children’s services can meet other obligations. It is not clear why any potential future demand cannot be met by increased resourcing which ensures that the rights to protection and support of all are safeguarded, alongside clear communication about any temporary adjustments which are needed to adhere to statutory obligations in the context of Covid. It is also notable how some of our legislators appear to dismiss hard-won safeguards, designed to ensure the state meets the key needs of children in care, so casually. On April 22, the day before SI445 was published, one MP described some of the procedural safeguards which SI445 removes, as ‘activities that are not useful or purposeful’. He offered the most cursory evidence in support of the claim. 

England is out on a limb in introducing SI445. Jonathan Stanley could find no other country which has reduced protections for children in care in this period. Wales, procedurally and legally, has a very similar child care system to that in England. The Welsh Government has not removed a single procedural safeguard for children. Instead it has explicitly stated that local authorities should meet their statutory responsibilities and provided guidance as to how they might meet them within the ‘spirit of the law’ in situations where Covid makes it difficult to adhere to the letter of the law. Practitioners in Wales, with whom I have had contact, have explained how this flexibility has been achieved through clear, open and regular communication between practitioners, managers, service heads, regulators and members of Welsh Government. The most obvious explanation for why the DfE did not pursue the same course in England is that there are some around government who have long wanted roll back procedural safeguards within English children’s services and saw the Covid crisis as an opportunity to do so. It is, though, also worth pondering why there appears to be a level of trust between relevant stakeholders in Wales which is not replicated in England – a trust which seems to have supported Welsh local authorities to take the alternative course they have on this issue. Perhaps in England the political use of Ofsted inspections to impugn the local authority delivery of children’s services and justify their outsourcing (Jones, 2019),  or the public denigration of practice competence in children’s services to justify multi-million pound payments to private companies to develop the National Accreditation & Assessment System (see also Cardy, 2020), have not proved conducive to developing relationships of trust and space for reasoned professional discretion?

There is little evidence that the leadership of the DfE is reflecting on these possibilities. It has been dismissive of the many, reasoned, criticisms of SI445 and has marginalised the voice of care experienced people in the process. In response to the growing number of concerns which were being raised about SI445, several of them by prominent care experienced campaigners and organisations working closely with care experienced people, the DfE produced an official blog that was notable for its churlish tone and inaccuracy. The blog stated that it was ‘false’ to claim the changes in SI445 removed legal protections for children in care. It is clear that they do so. To publicise the blog the Chief Social Worker, Isabelle Trowler, Tweeted it stating ‘the DfE continues working with the sector, listening to all those who raise concerns.’ I know of no groups of care experienced people, or organisations working with them, who have been approached by the DfE in respect of their concerns. What does that omission say to care experienced people? That they are not worth listening to? That they are not a part of ‘the sector’?

This conduct is part of a pattern. A dynamic and popular Conference for Care Experienced People was organised by care experienced people in 2019. The energy and findings of that conference have not been harnessed by the DfE’s leadership. Instead, children’s social care policy decisions appear restricted to a small number of insiders, who have the same world view. The Residential Care Leadership Board (RCLB) was set up by the DfE in 2017 with an explicit remit of driving forward improvements in the residential child care sector. It is headed by Sir Alan Wood, a close working colleague of Isabelle Trowler’s from Hackney; both also sit as Founding Board members of the What Works Centre for Children’s Social Care, which itself was initiated via a £20m grant from the DfE. The operations and membership of the RCLB have been opaque – by 2019 Wood remained the sole member of the Board. More recently, Wood convened a group providing ‘expert advice’ to the government on the provision of unregulated accommodation for children in care. How membership of this group was determined has not been explained and, as in the case of SI445, the process has denied people with care experience a seat at the table. More broadly, the current leadership of the DfE show no inclination to engage with anyone within the children’s services sector who is likely to disagree significantly with them. That provides an inauspicious context for sound policy making in children’s services, and a dangerous one for our democratic processes.

If the DfE’s leadership and other sector leaders want to the right wrong in respect of SI445, it is still not too late. Any engagement needs to be based on a desire to genuinely consult; in turn genuine consultation needs to be based on an acceptance that people with care experience who are affected by, or who have insights into, the changes in SI445 should have the ability to influence them; and in turn that acceptance requires that a realistic outcome of any engagement on SI445 be its revocation. Sector leaders may be surprised to learn that such engagement could lead to new, previously unrecognised, solutions which safeguard the rights of all. In the absence of such engagement, the campaign to revoke SI445 builds. It is being led by Article 39, an organisation which has spearheaded several previous campaigns for the rights of children in care. At the time of writing those supporting the campaign include 45 organisations from the children’s services sector in England, and just under 400 individuals with experience of, and expertise in, practice with children in care. I would encourage anyone who works or lives in England, and who has not yet joined the campaign, to look at the list of current signatories and consider joining them

Robin Sen, Lecturer in Social Work, University of Sheffield

I am grateful to Ian Dickson for helpful comments on an earlier draft. 

Twitter: @robin_23_99

References

Jones, R. (2019) In whose interest?: The privatisation of child protection and social work. Bristol: Policy Press.

Utting, W.B. (1997) People like us: The report of the review of the safeguards for children living away from home. London: The Stationery Office.