During the summer, the Government proposed the Children and Social Work Bill, which contained a clause allowing ministers to exempt local authorities from their statutory obligations whilst the delivery of its Children’s Services are subject to innovation.

In debates in the House of Lords before Christmas, Education Minister David Nash argued that overregulation obstructs good social work and prevents social workers from putting children’s needs first, as legislation not only sets out what local authorities need to do to protect children but gives a significant level of detail about how they should do it . Nevertheless, Lord Ramsbotham successfully defeated the broadly-drawn clause that, in previous draft of the Bill, proposed to give ministers powers to allow local authorities to be excused from child protection duties.

The Bill has attracted widespread opposition and concerns, including the suggestion that these powers are a Trojan horse to enable child protection services to be privatised and that vulnerable children would have different protections on the arbitrary basis of where they happen to live.

Notwithstanding the many and varied objections to this power in previous iterations of the Bill, and their pre-Christmas removal in the Lords, they were reintroduced at Committee stage in the House of Commons last week. A number of the issues that initially caused concern have been addressed during the most recent Committee stage, through the addition of a number of safeguards.

The relevant part of the Bill as currently drafted requires consultation both by the local authority applying for exemptions and by the Secretary of State in considering whether to grant it. It precludes local authorities from being exempted from ‘core’ safeguarding duties, such as the duty to provide appropriate services to children in need and the duty to make enquiries and take action to safeguard or promote welfare of children at risk (among others). Furthermore, any exemptions must be made by regulations to be approved by both Houses of Parliament. The regulations must be accompanied by a report explaining how the needs of children will be met and confirming that the regulations are not expected to have a detrimental effect on the welfare of any child. An annual report on the progress of each exempted innovator would need to be published annually too.

The Bill will go to Report stage at a date to be announced.

Comment

The safeguards appear to secure the greater democratic accountability of the Department for Education, albeit by adding more central control over local discretion, as well as greater respect for child protection services during this period of change.

It is unclear what effect the exemptions may have in emboldening innovators given the harsh financial environment in which Councils operate and without a connected shift away from the history of blame and scape-goating in this sector.

It is beyond dispute that local authorities, and any social enterprise delivering their Children’s Services functions, are in an unenviable position of conducting trial initiatives in a context where there can – on any right-minded view - be no error in relation to the protection of the most vulnerable in society. Any measures must be calculated and scrutinised to make sure that benefit leads only from well-managed risk. With this in mind, these amendments go some way towards providing a healthier environment for innovation in this regard.


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Emma Dowden-Teale

Partner

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Abbie Rumbold

Partner and Head of Public Services & Mutuals and Health & Social Care

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Caraline Johnson

Head of Education

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+44(0)20 7551 7674

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Posted on 19/01/2017 in Legal Updates

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