Roger Birch examines children and welfare issues in the context of local authority duties and the potential impact of the Children and Social Work Bill currently being considered by Parliament.
Public law involves the local authority in having an ‘overarching responsibility’ safeguarding and promoting the welfare of all children and young people in their area (Working Together to Safeguard Children: Department for Education, March 2015 (the guidance)). The guidance defines safeguarding and promoting the welfare of children as:
- protecting children from maltreatment
- preventing impairment of children’s health or development
- ensuring that children grow up in circumstances consistent with the provision of safe and effective care, and
- taking action to enable all children to have the best outcomes.
Local agencies, including the police and health services, also have a duty under section 11 of the Children Act 2004 to ensure that they consider the need to safeguard and promote the welfare of children when carrying out their functions.
Appendix A to the guidance sets out a series of definitions concerning:
- child protection
- physical abuse
- emotional abuse
- sexual abuse
- child sexual exploitation, and
It is interesting to note that Appendix A to the guidance defines a child as:
‘Anyone who has not yet reached their 18th birthday. The fact that a child has reached 16 years of age, is living independently or is in further education, is a member of the armed forces, is in hospital or in custody in the secure estate, does not change his/her status or entitlements to services or protection.’
Putting it in simple terms, public law involves the intervention of the state in the lives of families. It is accepted that parents are best placed to make decisions about the care of their children, so state intervention should only happen when a child is at risk. The court will not approve state intervention (care proceedings) unless the threshold criteria at section 31 of the Children Act 1989 is met. As said in Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075:
‘Apart from adoption, a care order represents the most fundamental intervention in family life and will only be made where the court is satisfied that no other measure will protect the child or children in question. Furthermore, where the care plan is for adoption, it is the decision of last resort and should only be made where there is no other option available.’
Clearly, permanent placement by the the removal of a child and/or children from their parents and family interferes with the child’s rights under Art 8 (right to respect for private and family life) of the European Convention on Human Rights, and those of the family associated with the child. There must be a balance of the competing rights when making a final decision. In Re C and B (Care Order: Future Harm)  1 FLR 611 Hale LJ (as she then was) stated:
‘Intervention in family life must be proportionate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child and their family is only justified by the overriding necessity of the interests of the child.’
The Children and Social Work Bill
In furtherance of the duty of a local authority in safeguarding and promoting the welfare of all children, the government has introduced the Children and Social Work Bill (the Bill) which is currently being considered by Parliament. This Bill, when it becomes law, will have a further impact upon the welfare of the child. There are six new policy areas contained in the Bill but I will mention three, they are:
Children in care and care leavers
Corporate parenting principles: this clause introduces a set of principles to which local authorities in England must have regard in carrying out their functions in relation to looked after children and care leavers.
Personal advisor: a clause to extend existing duties on local authorities to provide a personal advisor to care leavers in education up to the age of 25, so that every care leaver in that age group has similar support should they want it.
Adoption and other permanency arrangements
Proceedings relating to children: clauses requiring courts to take into account the current and future needs of a child when considering the plan for their upbringing should they enter care, and to require courts and agencies to consider any relationships between a child and their prospective adopters, with whom they have been placed, when an adoption decision is made.
Educational achievement of children adopted from care or who have left care under a special guardianship order of child arrangements order: places a new duty on local authorities to promote educational achievement and to appoint an officer (virtual school head) to ensure the duty is properly discharged, and a new duty on school governing bodies to designate a member of staff with responsibility for promoting the educational achievement of children adopted from care.
Serious case reviews
Incidents of national importance: clauses to create a new framework for reviewing certain incidents of national importance at the national level and for making the outcomes of those reviews public
The UN Committee
The UN Committee on the Rights of the Child has raised concerns about the attainment and life chances of children in care and Children’s Rights Alliance for England has raised concerns that the transition to adulthood for care leavers feels accelerated and compressed to their peers (see UK implementation of the UN Convention on the Rights of the Child, Civil Society Alternative Report 2015 the UN Committee – England).
Children and young people who also gave evidence to the UN Committee felt that not enough is done to support children leaving care, with many feeling unprepared and pushed to leave care before they were ready.
The Secretary of State for Education and the Minister for Children and Families (in Adoption – A Vision for Change (Department for Education) March 2016) have stated that:
‘…they are determined to see adoption pursued whenever it is in the child’s best interest and a system where all children are matched with adopted parents without due delay. That is what our children deserve and it is our duty, and our will, to ensure they have just that.’
It is the government’s aim to ‘tip the balance’ in favour of permanent adoption where that is the right thing for the child.
There has been a mixed response from the social care sector. In my opinion adoption may be the best route to performance for some children but we must not forget that the clear majority of children in care will live with foster families, some of whom will spend their whole childhood with one foster family. It is important to keep in mind the balance between those children who are adopted and those who remain in foster care. Both need long-term commitment. The extension of support to children in care up to the age of 25 is a most welcome improvement in the system so that these children have a stable base and someone to turn to for advice.
The provisions concerning adoption decisions apply to both England and Wales. The remainder of the Bill covers devolved matters and applies to England only.
Roger Birch is a barrister and a member of the Chambers of David Josse QC, 5 St Andrews Hill, London EC4V 5BZ. He is head of the Chancery and Commercial team and a member of the International Family Law Team