Clause 15 must go
By Carolyne Willow
| 29 June 2016
The Children and Social Work Bill gravely threatens children’s rights. Without any evidence that children’s entitlements, and local authority duties, get in the way of delivering effective children’s services, Clause 15 permits the removal or alteration of countless social care legal requirements. Clause 16 sets the time perimeter as six years, but we know from academies legislation that this could easily be repealed, to make rights removal permanent. The underlying rationale of this breathtaking legal development is both absurd and Orwellian: “rights are better protected when they don’t exist”.
So which rights are we talking about?
Clause 19 sets out the hit list: children’s social care requirements in every Act of Parliament listed in Schedule I of the Local Authority Social Services Act 1970. This is as wide as the Grand Canyon, spanning 80+ years of legislation, including the Children and Young Persons Act 1933, Chronically Sick and Disabled Persons Act 1970, Mental Health Act 1983, Children Act 1989, Housing Act 1996, Adoption (Intercountry Aspects) Act 1999, Carers and Disabled Children Act 2000, Adoption and Children Act 2002, Children Act 2004, Mental Capacity Act 2005, Children and Young Persons Act 2008, Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Care Act 2014. Clause 15 allows for the removal of duties from any of these Acts of Parliament, and all associated regulations. In the weeks since the bill was published, I’ve been warning that hundreds of duties are endangered. This is sure to be an underestimate for it is impossible to calculate the exact number of rights threatened. A legal handbook in respect of disabled children’s rights contains nearly 70 pages on children’s services. Before the Office of Children’s Rights Director’s statutory functions were transferred to the children’s commissioner, its ‘Rights4Me’ website contained 10 separate publications for looked-after children and care leavers, about their legal rights. The Family Rights Group offers 26 advice sheets on its website. Ministers may retort that they have no intention of jeopardising hundreds or thousands of children’s rights. Then why doesn’t the government include in Clause 19 only those laws which it believes children can do without?
There has been no consultation on this constitutional change, whereby local authorities will be able to pick and choose which duties they ditch or deliver. But it is not only local authorities that are to be handed the power to decide which rights stay and which rights go; individuals sent in to failing children’s services will have this authority too. The Secretary of State also. Ministers have not forecasted the impact on vulnerable children, young people and families because, as their assessment makes clear, “The bill itself simply enables the making of secondary legislation and does not in itself have any regulatory impact”. Once a request for the removal of duties has been received by ministers, Clause 17 requires they have to only consult the children’s commissioner and Ofsted’s chief inspector, before giving the go-ahead for regulations to be drafted. These will then be subject to either the negative or affirmative resolution parliamentary procedure. The bill does not require any consultation with local children, young people and families, although asking the disadvantaged and abused which rights they don’t need would arguably be in bad taste.
As for involving the children’s commissioner in implementing government policy, this could (further) undermine the role’s independence and interfere with its primary function to promote and protect the rights of children. There is also the irony that Clause 15 allows local authorities to opt out of responding to the commissioner’s inquiry recommendations. That particular legal duty took 23 years of campaigning to achieve.
Parliamentary sovereignty is at the heart of the UK’s legal system. That’s why the Human Rights Act enables a UK court to declare that legislation is incompatible with rights in the European Convention on Human Rights, but not to amend the offending law. The task of deciding whether or not to change legislation always lies with parliament. Enabling the removal of legal rights from children, young people and families in a designated area, by negative or affirmative resolution, inevitably erodes parliamentary sovereignty. Both processes allow very little parliamentary scrutiny and debate and no changes can be made: the regulations either succeed or fail. All legislation pertaining to children’s social care passed by parliament in future will be threatened by this exemption clause. No longer will laws stand firm for children across the country. Over the past 25 years, I have had various roles that involved providing legal information to children in care and care leavers. If Clause 15 passes, where a child or young person lives will be one of the key determining factors in advising them what rights they have. Who will keep tally of which rights have been removed from whom and where?
At second reading of the bill, schools minister Lord Nash gave three examples where legal requirements could be taken away. This encompassed the dissolution of adoption and fostering panels; a vague proposal to weaken the assessment process for looked-after children placed with family and friends (this was the week before Ben Butler was jailed for murdering his six year-old daughter, Ellie Butler); and the removal of independent reviewing officers (IROs) from “low risk” children. Presumably the minister believed these to be non-contentious, perhaps not being aware of the evolution of IROs and the imperative of looked-after children having someone independent of the local authority to safeguard their rights.
Commitment to children’s rights has always been a hybrid of respecting children as human beings with dignity and worth, and ensuring the laws of the land protect and provide for them. Seventy six organisations supported the Children’s Rights Alliance for England’s latest submission to the UN Committee on the Rights of the Child. This international body of experts naturally advocates that children’s rights must have the force of law. Clause 15 attacks the very notion of children having clearly defined legal rights, it fuels paternalism and discretion and cements social care entitlements by geography. For the sake of children and young people everywhere, it must fall.
Carolyne Willow is director of Article 39 children’s rights charity