The ongoing Care Review in England has been described by its leadership as ‘a once in a generation opportunity to transform the children’s social care system and improve the lives of children and their families’. It is generating much discussion amongst practitioners and observers.

This is a guest post by Emeritus Professor June Thoburn, School of Social Work, Centre for Research on Children and Families, University of East Anglia. Prof Thoburn tweets as @Junethobu. She has no connection to the Review.

Although the Care Review and this ‘case for change’ is ostensibly about social care services, because these services are governed by legislation (mainly the Children Act 1989) any ’once in a generation’ changes to emerge are likely to have profound implications for legal professionals and the courts.

In their summary of the overarching reasons for concern, the Case for Change (CfC) authors echo  other report writers (whom they cite selectively) in concluding that too many children are channelled through formal child protection procedures and the courts and are placed in out-of-home care, with too little help being provided to parents and children to avoid the need for compulsory intervention in too many cases. We would be hard put to find social workers or family lawyers who would disagree.

Use of research

There is, however, much room for challenge of the analysis in the CfC of the reasons for the present imbalance between Section 17 services for ‘children in need’ and the increase in care applications and numbers in court-ordered care.  The use of research is (as with learning from previous reviews) patchy and selective. As an example, the evidence that in only a tiny minority of cases are ‘significant harm’ grounds found not proven is brushed over, and undue weight is put on this Harwin et al research . The CfC report states on p 45:

‘In an evaluation of supervision orders after four years, 40% of children had experienced further neglect, 24% had experienced a permanent placement change and 28% had experienced further care proceedings (Harwin et al., 2019)’

without explaining that these figures are drawn from a small sample of 194 children (Harwin et al 2019. Ch. 4)

Though an important addition to the research and data evidence, orders resulting in return of a child found to have suffered or likely to suffer significant harm to a parent were made in fewer than 5000 of the 25,000 applications in 2016-17. If significant inroads are to be made to reduce the numbers of care order applications, a more comprehensive review of the totality of research on children who may be suffering harm in the community (those returning from care but the very many more known to be living in harmful circumstances) will be needed. 

Statutory services

The Children Act 1989, the carefully-crafted foundation for ‘targeted’ child and family services to those struggling with personal and relationship difficulties and the increasing pressures due to austerity, is damned with faint praise when referring (p81) to the need for ‘recommendations that return to and strengthen the bedrock principles of the Children Act 1989’. 

There are some worrying, mis-representations of the legislation’s careful balancing of children’s rights to protection and children’s and parents’ rights to quality services to meet individual needs. Specifically, these run through the report largely because of the imprecise use of the term ‘statutory’. A statutory obligation on a local authority literally means it has been placed there by statute, an Act of Parliament, e.g The Children Act 1989. A non-statutory service would be one provided by a local authority beyond one it legally has to provide. However, the report writers use terminology from Department for Education budget conventions to make a distinction between ‘statutory’ and ‘non-statutory’ services rather than the legislation itself. In much of their argument they confuse ‘statutory’ with ‘non-voluntary’ and more ‘coercive’ interventions, and appear to be saying that Section 17 (the section that says local authorities have to provide appropriate services to children they assess as ‘in need’) is not ‘statute’.  Services provided under CA 1989 Parts 4 and 5 (child protection) are equated with ‘statutory’ services (the ‘demand-led’ services including child protection investigations, court applications and services to children in care) and Part 3 services (Local Authority Support for Children and Families) tend to be categorised as ‘non-statutory’ rather than as ’permissive’ services, provided by agreement but sanctioned by law.

There appears to be a lack of familiarity with the legislation itself and the statutory guidance, and especially with the discretion provided in law to social workers to work collaboratively with families and use compulsory  powers only when necessary. The overlap between the wording of Section 17(10): the child’s ‘health and development is likely to be significantly impaired, or further impaired without the provision [of support services]’, and Section 47 : ‘have reasonable cause to suspect that a child …… is suffering, or is likely to suffer, significant harm’ is there to allow for discretion in individual cases.  From the parent’s, social worker’s and indeed child’s perspective, the need for services to prevent ‘significant impairment’ and ‘significant harm’ must seem indistinguishable – it is the services that are important.

A key principle of the ‘89 Act – that services can, and indeed should, be provided if at all possible with the agreement of parent/s and older children – is also recognised by the ‘checklist’ Sec 1 (5) – the court cannot make a care or supervision order ‘unless it considers doing so would be better for the child than making no order at all’.  It is this combination of different powers and statutory duties in the Act, and the discretion to decide which part of the legislation is most appropriate in each case, that resulted in a fall in numbers in care in the years following the Act’s implementation (Department of Health. The Children Act 1989: Messages from Research, 2001) and the ‘refocusing’ measures in 2000 (Hughes, R. and Rose W. (2006)  ‘Coming of age. Has the Children Act 1989 lived up to its promise? Journal of Children’s Services, 5, 2 pp2-7).    They also underpin the detailed measures introduced by the President’s Public Law Working  Group aiming to make the reduction of care applications and greater use of part 3 provisions a realistic path to follow. 

Children in care under section 20

This confusion caused by the CfC’s using the term ‘statutory’ to equate with compulsory/coercive/ non-voluntary/ ‘demand-led’ provisions is further exemplified by the fact that children looked after under Section 20 are included within this group.  Of course, like all provisions in the Act, Section 20 decisions are authorised by statute, but (except for those aged 16 and 17 whose welfare is ‘likely to be seriously prejudiced’ if accommodation is not provided) they are subject to parental/older child  agreement and social worker/ local authority discretion.  Once provided, they are regulated by statute and therefore expenditure is ‘demand-led’ and has to be provided, as with the more ‘coercive’ formal child protection investigations, and services to care leavers, which apply equally to those on care orders and accommodated.

Family support

Moving on to the important section on services, although this is not at all clear, the CfC writers appear, in describing the ‘Help’ services that are needed, to see these as not currently provided for. Schedule 2 of the ‘89 Act Part 1 (1-11) (Local Authority Support for Children and Families – not referenced in the CfC) goes into detail about Part 3 family support provisions (including Family Centres, and the provision of holidays). A further reminder that Section 17 is ‘statutory’, in that it places on Local Authorities the duty (for which they can be held to account) to provide family support services as needed, both for children who may be suffering significant harm or impairment (Section 17. (10, b) and Section 47) and for those who need additional (social work-led) services in order to ‘have the opportunity of achieving or maintaining a reasonable standard of health or development’ (Section 17 (10 (a)). The intention of the originators of the legislation (fully discussed with ministers and in Parliamentary debates on the that Bill) is clearly stated:  ‘It would not be acceptable for an authority to exclude any of these three (disabled children provisions also included) for example by confining services to children at risk of significant harm’ (The Children Act 1989 Guidance and Regulations Volume 2 1991 para 2.4).  Mechanistic ‘thresholds’ and ‘step up’ ‘step down’ processes that result in local authorities making de-facto decisions to restrict and ration services are contrary to the intention of the Act and are the result, as Directors of Children’s Services over the years have made clear, of the need to ‘ration’ services in response to inadequate funding.

Some have ‘bucked the trend’ (some cited in the CfC) by opting for a community/ neighbourhood approach to service delivery and moving away from separate ‘in need’ and ‘child protection’ teams.  They succeed (against the odds when austerity has greatly increased hardship on families) in maintaining family support spending, by making maximum use of the discretion and encouraging a less risk-averse approach in their staff.  There is a nod in the CfC to the impact of poverty on parents’ ability to meet their children’s needs, but no call for Government to change income support and homelessness policies, and to put back into Local Authority family and youth services the funds removed over the last 15 years, with necessary additional increases because of the impact of COVID.

Assessment

‘Assessment’ is another term along with ‘statutory’ that is used imprecisely. It is often used in the CfC report as synonymous with (unwanted and unwelcomed) ‘interventions’ – a term used instead of the broader ‘support services’ or ‘social work help’.  However, as the Laming report made clear in 2003, all children referred as possibly ‘in need’ and their families have a right to a social work assessment (to include their own views) about how they can best be helped (an assessment of need which will in some cases include whether there are safeguarding issues). The 2000 version of the Assessment Framework makes clear that services to assist the family must be provided at the same time as a more detailed assessment of any needs and risks, and decisions about additional services to be provided.

The CfC concusions

It is in its conclusions about ‘what’s to be done’ that the CfC differs from other Reviews, including the more court focused Public Law Working Group Report and the DfE’s Task Force and Reform Board Reports.  Whilst both of these, informed by ‘practice wisdom’ from across the ‘family justice’ and child welfare professions, family members and their advocates, made clear recommendations about practical steps to be taken immediately, the writers of the CfC (though as yet only hinting at what this might involve) envisage ‘root and branch’ changes to  the ‘system’ (imprecisely defined but described in the following terms:  ‘Our children’s social care system is a 30-year-old tower of Jenga held together with Sellotape: simultaneously rigid and yet shaky’ (p 3).).  

Though more equivocally spelled out, social workers and social work services are pointed to as a part of the system (perhaps THE part of the system) needing fundamental change. Given that at the root of much of what is presently impeding the much needed re-balancing between support to families and compulsory interventions, is lack of adequate funding for Local Authority services to families and children, the nod to the need to properly resource these services should be developed into a required first step before any decisions are taken to make fundamental changes to how services are to be provided. Such changes that are being hinted at are likely to fragment services and, especially if legislative change is required, cause upheaval to professionals (social workers and other ‘team around the family’ professionals) already struggling to meet increased need. Recruitment and especially retention of skilled and experienced social workers, so essential to continuity of relationships with children and families and with professional colleagues, is likely to be adversely affected, on the evidence of past ‘root and branch changes’ for precious years in the lives of those currently needing services.

Keeping an eye on the Review

In the meantime, family justice professionals and commentators (some coming under the unclear term ’watchers’, who are to be thinned out) will want to keep a careful eye as details of proposed ways forward. Will the focus on removing ‘sellotape’ or ‘bricks’ (unspecified) in the ‘Jenga tower’ portrayed in the Case for Change, be used to justify the continuation of the DfE direction of travel, (pointed up by Article 39 in the course of the successful SI 445 Judicial Review, R (On the Application of Article 39 v Secretary of State for Education (Rev 1) [2020] EWCA Civ 1577  and, under the guise of ‘de-regulation’, to reducing children’s legal rights and families’ rights to quality, publicly-accountable services?