Children’s Sector Amendments for Provision Relating to Clause 15 of the
Children and Social Work Bill, 2nd Day of Committee Stage HoL, 29th June
2016
Overview
This briefing collates amendments relating to Clause 15 of the Children and Social Work Bill from
across the children’s sector. It was produced in partnership with Action for Children, Barnardo’s,
Children’s Society, Mencap, NCB and the NSPCC. We believe that despite improvements, as a society
we are still not doing enough to prevent the abuse and neglect of children. For instance, we know
that:
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One in five children today have experienced serious physical abuse, sexual abuse or severe
physical or emotional neglect1
Nearly one in 20 young people aged 11 to 17 have experienced contact sexual abuse2
For every child subject to a child protection plan or on a register in the UK we estimate that
there are likely to be around eight other children who have suffered maltreatment.3
As such Action for Children, Barnardo’s, the Children’s Society, Mencap, NCB and the NSPCC all
believe that the key objective for any change in social care or child protection provisions should be
achieving better outcomes for children, tailored around each child and family’s individual needs.
We recognise the need for the child protection system to evolve and develop, and therefore
welcome the opportunity to explore and test aspects of legislation which might improve outcomes.
We nonetheless have serious concerns over the scope and intent of the proposed legislation
outlined in Clause 15 and its related clauses. As it stands we do not believe the proposals have paid
sufficient regard to ensuring the safety and wellbeing of children, while the Government has not
been clear about the circumstances in which exemptions from legal duties could be enacted and
why such exemptions are necessary. For instance some areas have already developed and
successfully piloted innovative approaches within children’s services whilst meeting their statutory
1
How Safe Are Children, 2013, NSPCC, pg. 4
How Safe Are Children, 2014, NSPCC, page 38
3
How Safe Are Our Children, 2013, NSPCC, page 6
2
responsibilities.4 Furthermore, the Government must be rigorous in its assessment that any use of
powers under these sections must be in the best interests of all children including children in care,
care leavers, those with special educational needs and disabilities, those who have been abused and
neglected, those with mental health needs etc.
In order to improve safeguards in the Bill we argue that:
1. In order to ensure that the impact of regulations under clause 15 on children’s safeguarding,
health and wellbeing, and access to support services requirements is understood, the Secretary
of State must be placed under a duty to monitor and report.
2. A set of stronger measures need to be placed on the Secretary of State when making the
decision to exempt local authorities of legal duties.
3. The consultative process for making exemptions must be transparent and strengthened with
particular emphasis on the wishes of the children and families who will be most affected by
exemptions, and recognise the insight of interest groups.
4. Where exemptions have been made for a local authority, children must have the right to be able
to access support which would be available in other local authority areas under duties imposed
by children’s legislation.
5. Greater Parliamentary scrutiny is required to ensure rigour in the process for making
exemptions.
1. Secretary of State Duty to Report
Page 14, line 4, at end insert New Clause 15B (1) In relation to each exempt local authority with delegated powers granted under regulations
made under [clause 15.2], the Secretary of State must report annually on the impact of the
exemption on children and families in that area.
(2) Impact refers to the effect on:
(a) safeguarding;
(b) health and well-being;
(c) access to support and services.
Why this is needed
This amendment seeks to ensure that the Secretary of State takes responsibility for the safeguarding
and wellbeing of children by ensuring that arrangements are made to monitor and report where
local authorities have been exempted from specific duties. This seeks to rectify a possible absence
of responsibility which the lifting of key safeguards passes without sufficient consideration of their
impact, and as such to put the onus on the Secretary of State to ensure that reporting mechanisms
remain in place and a continued assessment of the risks of the children is carried out.
4
Nine ‘Partners in Practice’ are Cambridgeshire, Lincolnshire, Islington, North Yorkshire, the Tri-Borough
authorities (Westminster, Hammersmith & Fulham, and Kensington & Chelsea), Leeds, Durham, Hampshire
and Richmond and Kingston (which are run by Achieving for Children, a community interest company). These
councils have “freedoms to innovate, to improve frontline children’s social work and to develop new systems
of delivering social care and trialling new ways of working with families”.
2. Scrutiny of Local Authority Exemption Requests
LORD WARNER has tabled the following amendment which we recommend speaking to.
Page 13, line 28, at end insert—
“( ) Before making any exemptions or modifications under subsection (2), the
Secretary of State must consider the published advice of an independent review panel established to
consider whether any such exemptions or modifications are likely adversely to affect legislative
safeguards or rights of children approved by Parliament.”
Why this is needed
This amendment seeks to add a greater level of independent scrutiny where local authorities are
seeking exemptions from statutory duties. The amendment attempts to address issues around
impartiality and independence by introducing an important check and balance. This amendment
closely relates to the amendments set out in section three immediately below.
3. Consulting on Granting Local Authorities to Test Different Ways of Working
Clause 17, page 14, line 27, after “Children’s Services and Skills, and” insert (c) a 12 week open consultation period.
Clause 17, page 14, at end of line 32 insert (5) Before making regulations under section 15 the Secretary of State must:
(a) Produce a response to the consultation responses received,
(b) Deposit a copy of all consultation responses received, as well as the Government’s response, in
the House of Commons Library.
Why these are needed
Clause 17 introduces a duty on both local and national government to consult the Children’s
Commissioner; Her Majesty’s Chief Inspector of Education, Children’s Services and Skills; and any
other person the Secretary of State considers appropriate before any exemptions can be made.
Children, their families and local community services should be consulted in decisions about care
arrangements, particularly when changes may impact on their experiences of social care. In addition,
the Bill does not currently have a requirement to disclose information about how local or national
government will consult, publicly or privately, and whether their responses will also be published.
This could mean that any concerns raised during the consultation period may never be heard or
deliberated before putting in place any exemption. Our amendments to clause 17 would ensure all
exemptions to legislation were open to a 12 week public consultation so that residents, including
service users, from the local area could be consulted as well as interested parties, and would require
the Secretary of State to respond to, and publish, advice received during the consultation process.
4. Children’s Right to Continued Access to a Service
Clause 15, page 13, line 28, at end insert –
() during the period a local authority in England is exempt from a requirement imposed by children’s
social care legislation under section 16 a child or a representative acting on behalf of child has the
right to request that the child receives provisions to meet their needs where a service or entitlement
would be required by law if the child lived in another local authority area that was not subject to
regulation made under section 15.
Why this is needed
It is not clear from the current drafting whether powers to exempt a local authority from a
requirement under children’s social care legislation are intended to suspend only the provision of a
service, or if the suspension applies to a child’s right to access that service. If a local authority has
been exempted from providing a statutory service – through regulations made under clause 15 – we
are concerned that this does not result in individual children living in that area having weaker
entitlements under national law when compared with their peers across the country. The
suspension of services will also present practical difficulties if a particular child or young person
needs to access support which they would otherwise be entitled to under a different local authority
that is not exempt from requirements imposed by children’s social care legislation.
5. Parliamentary Security
Clause 15, page 13, line 37, after “imposed by subordinate legislation” insert “which was itself
subject to the negative resolution procedure”
Why this is needed
To exercise powers under Clause 15, the Secretary of State would have to introduce regulations, but
in some cases these could be approved without a full debate and vote in Parliament, as drafted in
the Bill at present. This could include exemptions from regulations which were themselves subject to
a full debate and vote in Parliament. Where exemptions are made to legislation which was passed
with active parliamentary approval, this amendment would ensure that these exemptions are
subject to appropriate parliamentary scrutiny and agreement, through the affirmative resolution
procedure.
6. Questions for the Minister
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Can the Minister commit to publishing evidence of the need for the new enabling power and the
ways in which existing legal duties are posing a barrier to local authorities securing better
outcomes for children?
If a support service is no longer available, will there be requirements on the local authority to
source alternative support particularly if that service is requested by a child or family?
How will local authorities ensure that support, which the local authority is exempted from
providing under regulations made under clause 15, is available in exceptional or emergency
cases?
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In what circumstances might clause 15 be used in respect of local authorities that have not
received a recent Ofsted rating of Good or Outstanding?
Is it right that exemptions could be made in relation to regulations passed by a full vote of both
houses, without a similar parliamentary process?
Has the Government made any assessment of the risk to children posed by proposals to exempt
local authorities of their key duties for keeping children safe?