The Children and Social Work Act 2017

June 14th, 2017

After significant controversy and substantial amendments, the Children and Social Work Act 2017 received royal assent on 27 April. While the majority of the legislation is not yet in force, the changes contained in the Act will have important implications for the regulation of social work in England, safeguarding of children, and investigations into the death of children. In addition, the Act clarifies and amends the obligations of local authorities as corporate parents.

As the Children and Social Work Bill progressed through Parliament, one issue attracted particular parliamentary and media attention. The original Chapter 3 of the Bill empowered the Secretary of State to, the request of a local authority, exempt that local authority from its legal duties in relation to children’s social care. The stated purpose of these exemptions was to enable local authorities to test different ways of working. Exemptions were set to be available in relation to duties under 13 separate pieces of legislation, including the Mental Health Act 1983, Children Act 1989, Children Act 2004, and Care Act 2014. This proposal met with significant opposition. Together for Children, a coalition of 53 organisations brought together to oppose the exemptions, ran a successful campaign to remove Chapter 3 from the Bill. The final Act contains no provision for such exemptions. For practitioners, this is obviously significant. As stated by Together for Children:

When legal duties towards children exist, courts can ultimately decide if there has been a failure to implement them… We know from our work with children and young people that sometimes the threat of legal action is the only means of getting help for them.

In addition to what is not in the final legislation, a number of important changes have been made:

Social work regulation in England

Part 2 of the Act sees the creation of a new organisation, Social Work England, to take over from the Health and Care Professionals Council as the profession’s regulator. This aspect of the Act also evolved considerably during its progression through Parliament. An initial, extremely controversial plan to create a government controlled regulatory body was scrapped after fierce resistance from several important sector bodies. The proposal would have seen social work placed under the direct control of the Secretary of State for Education and was opposed on grounds of lack of independence.

In its place, the Act makes provision for a new non-departmental public body, with the same status as social work regulators in the rest of the UK. While this provides greater independence than initially proposed, the British Association of Social Workers is still concerned about aspects of government control that were retained: the Chair, Board and Executive of the new Social Work England will be accountable to government Secretaries of State. The Act also enables the Secretaries of State for Education and Health to set post-qualifying improvement standards for social workers. It will be of significant interest to the profession to see how this plays out.

Safeguarding

Part 1, Chapter 2 of the Act provides for a restructuring of child safeguarding oversight in England. It establishes a new Child Safeguarding Practice Review Panel, to identify serious child safeguarding issues in England which raise issues that are complex or of national importance (section 12 / new section 16A Children Act 2004). Of significance for local authorities will be the requirement to notify this Panel if they know or suspect that a child has been abused or neglected, and the child dies or is seriously harmed in the local authority’s area (section 14 / new Section 16B Children Act 2004).

The precise relationship between this new panel and the powers of the Children’s Commissioner (section 3 Children Act 2004) remains to be seen. While the Commissioner has a power to hold an inquiry where he “considers that the case of an individual child in England raises issues of public policy of relevance to other children”, this power is expressly limited to circumstances where the Commissioner is satisfied that “the inquiry would not duplicate work that is the function of another person”. The new panel might thereby limit the role of the Children’s Commissioner.

The Act abolishes Local Safeguarding Children Boards, and replaces them with ‘local arrangements’. These arrangements will involve the safeguarding partners for a local authority area in England – namely the local authority, the local clinical commissioning group, and the chief officer of police for the area – and any other relevant agencies considered appropriate. Together, they must work together in exercising their functions for the purpose of safeguarding and promoting the welfare of children in the area (section 16 / new Section 16E Children Act 2004). The safeguarding partners must also carry out child safeguarding practice reviews, to identify and review serious child safeguarding cases raising issues of importance in their area (section 17 / new 16F Children Act 2004).

Investigations into the death of children

The Act also creates the unfortunately named ‘child death reviews’ (sections 24-28 / new section 16M-16Q Children Act 2004). Child death review partners for a local area – namely, the local authority and the clinical commissioning group – are required to arrange reviews of any deaths of children ordinarily resident in their area. The purpose of these reviews is to identify any matters that are relevant to the welfare of children in the area, or to public health and safety, and to consider whether any action in response is required.

The precise relationship between these reviews and the role of Coroners in preventing future deaths is unclear. A concern moving forwards is that local authorities may use these reviews to argue against the necessity of a Coroner’s prevention of future death report, in cases where the local authorities themselves are implicated.

Obligations of local authorities

The Act seeks to provide clarification of local authorities’ corporate parenting obligations. Section 1 provides an important list of ‘corporate parenting principles’ which local authorities in England must have regard to when carrying out their functions.

In addition, the Act specifically requires:
• Local authorities to publish information about services which they offer for care leavers under the Children Act 1989, and any other services offered that may assist care leavers in preparing for adult and independent living (section 2).
• Local authorities to provide support to any care leaver (up until the age of 25) who requests it, including the provision of a personal adviser, assessment of needs, preparation of a pathway plan, and the provision of any support identified in that plan to be appropriate. Local authorities are under an obligation to inform care leavers of this opportunity for advice and support. (section 3 / new section 23CZB Children Act 1989).
• Local authorities to make advice and information available to previously looked after children to promote their educational achievement. Local authorities must appoint at least one person to discharge this duty (section 4/ new section 23ZA Children Act 1989).

There are, therefore, significant new obligations placed on Local Authorities under the Children and Social Work Act 2017 which must be complied with.

Jonathan Auburn

ja@11kbw.com

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