Thirty Years of the Children Act – Some Thoughts:
A qualified social worker for 38yrs and a senior manager for the last 20. Over the last 10 years, I have worked mostly in authorities in intervention. I have chaired Improvement Boards and LSCBs and currently chairing the new multi-agency safeguarding arrangements in Wiltshire. I am a member of the new National Child Safeguarding Panel.
The fact that these are torrid times in the public sector is nothing new. That children’s services are facing an enormous range of challenges is equally not new. Rising numbers of children in need, children on child protection plans, children in public care, the impact of gang culture, knife crime, child exploitation, child sexual abuse still too far off the radar, increase demand in SEND, pressures on recruitment and retention and shrinking and inadequate budgets. Such is the lot of most children’s services today.
However, within this maelstrom of activity sits an important anniversary that should be more celebrated than it is. The Children Act is 30 years old this year. I was a social work team manager when it was passed and I still remember the sense of anticipation engendered by a piece of legislation that swept away a range of different, old and unconnected Acts we were working with at the time and, most importantly, introduced something based firmly on sound values and principles. It is these principles that remain of central importance to us in the Family Rights Group - principles that continue to inform so much of our work and our advocacy with the central government for continuing reform and improvements to the experiences of children, young people and their families.
What did the Children Act bring? The list is substantial. Ascertaining and responding to the child’s wishes and feelings; that the welfare of the child is paramount in all decision making about them; introducing the notion of parental responsibility; that delay is inherently damaging to children and that there should be a presumption of no state intervention unless the evidence for it far outweighed the potential damage such intervention might cause. A duty to promote to the upbringing of children within their families as long as it remains consistent with their welfare. The importance of partnership with families was writ large throughout the Act. Staff training in the new legislation at the time and for a period after focussed on ‘working in partnership – what it meant, how to do it, what were the barriers?’ Does that still happen? Obligations were placed on local authorities to consult with families about the placement of their children when coming into care, the ability of local politicians to simply admit a child into care via an administrative procedure was scrapped; care proceedings that had been based on criminal processes were fundamentally overhauled and, crucially, the Act introduced the notion of families needing and being entitled to support to enable them to care for their children. Notions of custody and access, with all their implications of ownership and children as possessions, were swept away and replaced with the concepts of residence and contact.
The Act does not need replacing
Much of this is now so taken for granted by the system that we forget that not that long ago a very different set of laws, practices and approaches prevailed.
The Children Act was and, at its heart, remains a sound piece of legislation that continues to reflect well on those who crafted it so cleverly and thoughtfully. The longevity of the Act is testimony how it was collaboratively drawn up based upon sound evidence. FRG is proud of the role it played in its drafting and also the substantial guidance that accompanied it. The Act does not need replacing. We should in my view instead be using the anniversary to examine how external demands on the system and changes in society over the thirty years make the continued implementation of the Act difficult or challenging. We should equally use the anniversary to see whereas a system we have lost our way over the intervening years and make conscious and explicit moves to return to those values and principles and review our current functioning against them. Not all the challenges in children’s services are external and not all are outside of our gift to resolve.
Of course, probably the most important factor that the Children Act did not and could not have anticipated has been the inexorable rise in the numbers of children in public care. This has put huge pressures on our legal and judicial system, our care and planning system, on placement options, on budgets and crucially onto children and families involved. The numbers of children in care in England have risen from just over 40,000 in 1994 to over 70,000 by 2018. In September 2016 Sir James Munby, then President of the Family Division for England and Wales, spoke of “the seemingly relentless rise in the number of new care cases”. He added: “We are facing a crisis and, truth be told, we have no very clear strategy for meeting the crisis. What is to be done?” It was this that prompted the Family Rights Group, with support from the Nuffield Foundation, to facilitate a sector-wide Care Crisis Review. The Review’s report published in June 2018 described both the root causes of the problem, detailed the implications of this rise in numbers on the system as a whole and set out a range of options for change aimed at system leaders, practitioners and central government if we are to halt and reverse this crisis. I will not reiterate those options here save to say they are rooted in an experience of what works and offer some practical considerations about what would actually make a difference.
The second factor that could not have been anticipated by the drafters of the legislation was the impact of austerity.
Clearly, there is a relationship between deprivation and state involvement in children’s care and protection and whilst it is not a simple, linear one, undoubtedly part of the rise in care numbers is consequent upon increased deprivation. The impact on the reduction in service provision in recent years is also key to the current crisis. The legal aid budget has been slashed – and whilst parents have a right to non-means tested legal representation in care proceedings, relatives don’t. There can only be partial confidence at best that families are being properly heard and properly represented in care and other proceedings.
FRG runs an advice line for families involved in child protection and care proceedings. Demand for the service has doubled over the last 10 years. Last year, just under 17,000 people called the advice line. Our funding constraints meant we were only able to answer around 30% of callers. The obvious implication of this unmet demand taken with the reduction in legal aid is that there are children subject to statutory state intervention, whose families have not understood their rights and options and whose views have not been properly heard and factored into the plans for those children.
For me, probably the most important principle enshrined in the Act was the no order principle – a presumption that the state should only intervene if it was demonstrably better so to do. It recognised that the care system, however good it was or could be made to be, was not an automatically better option for children at risk – it carries its own risks which need to be balanced with the risks of non-intervention. The ability to hang on to this balanced and informed approach to risk is the core job of any senior manager in a children’s service – but is all too frequently compromised by the pressures of the inspection regime which is still not sophisticated enough to evaluate it coherently and by public and media pressures that continue to push the system towards a ‘something must be done’ response with little regard for consequences.
Equally, the no order principle was inherently tied up with the ability to offer families support to stay together and to help them manage through difficult times. Section 17 of the Act sets out the duty to help and support children in need in a variety of ways – including financially. What is now available to help families in difficulties? It remains a truism that those families at the sharpest end of any local threshold guidance, those with children subject to child protection plans or on the edge of, care often, those most in need and most vulnerable often only have the services of a social worker. Whatever skills and commitment they bring, it cannot be said to be comprehensive family support.
One of the key-supports designed to be offered to families was that captured in Section 20 – the provision of voluntary care. It was to be seen as a positive service that could help families during, particularly stressful times, with a clear understanding that parents retained their parental responsibility throughout the placement and should be able to end the placement whenever they wanted, with no notice. When we first started implementing this, I recall many local authorities wrote helpful leaflets for families explaining their rights under Section 20, had them translated into whatever were the prevailing languages in their area and worked with local legal firms and FRG to ensure they were well equipped to offer advice and advocacy as needed. I wonder how many areas still offer similar written information?
What was not intended by Section 20 but what is too often the case, is that section 20 become an agreement reached with parents under duress, with the threat of ‘we will go to court and seek removal anyway’ and thus as long term ‘coercive’ care arrangements which haven’t been subject to court scrutiny. Sadly, I have seen cases of children who have been in care for years moving between fostering placements and ending up in residential care all done under a voluntary care ‘agreement’ and with the family side-lined or out the picture. Apart from the ethics of this, no one with parental responsibility (PR) is making decisions about the child. Clearly, the local authority doesn’t have PR but neither in reality and for all practical purposes - nor do the parents.
The Act and associated guidance envisioned a more central role for extended family members in the care of their children. The broader family network was to be seen as a resource for struggling parents and for the child if they could not remain with their parents. Yet the Care Crisis Review concluded that family too often remains an untapped and uninvested resource. Still, too many authorities do not have coherent or effective kinship care policies and procedures. Despite FRG introducing family group conferences (FGC) to the UK over twenty years ago, it is still not routine in many areas for families to be offered one, to enable the family to come up with a plan to address concerns and identify who may be able to raise the child, short or long term, if the parents can’t. And still too many kinship carers have to battle the system for financial or therapeutic support for traumatised children. FRG is now supporting a cross-party Parliamentary Taskforce on Kinship Care in the hope of increasing awareness about kinship care, securing changes in legislation (including the benefits system) and importantly increasing government investment.
At the heart of the Children Act is an expectation and a requirement that what we now know as ‘relationship-based practice’ will sit at the heart of the work undertaken and services offered to vulnerable children and their families. Working in partnership, if properly meant and understood demands nothing less. Yet Isabelle Trowler Chief Social Worker for Children and Families in her 2019 report “Care Proceedings in England: the case for clear blue water” commented:
“One of the most striking findings of the study was the extent to which families were expected to have open and honest relationships with social workers, and that an absence of this trust, was taken as an indicator of increased risk to the child. Parents were described as “not open and honest”, having “deliberately misled the authority” or “withheld information”, were “being collusive” or “failing to inform”, “attempting to manipulate”, “failing to be proactive”, “breaching working agreements”, “lying to professionals and telling the children to lie”. “
In summary, these behaviours are often labelled as ‘disguised compliance.’ I sit on the National Child Safeguarding Review Panel and it is depressing the number of times one sees in case reviews, including Serious Case Reviews, this term being used, and in a way which makes it seem that the abuse or neglect and the demonstration of disguised compliance are being treated with equal weight. It is a term often used alongside ‘lack of professional curiosity’. Both terms should be banned in my view. Both are evidence of a failure to ‘do’ relationship-based practice – building effective relationships with children and their families, and then, crucially, using those relationships to help bring about change demands a curiosity about how families work, about what it is like to be a child in that family and requires an understanding that families, many of whom will have had a negative experience of the state already and who will be fearful of losing their children to the care system will need to be assured that the attempts at partnership work are genuine and substantial. Relationship-based practice is not an element of the job, it IS the job. And, by the way and just to be clear, that absolutely does not mean that attempts to work with families in partnership are in some way counter to work to protect the child – they are not opposite ends of a continuum.
That said, there are growing grounds for optimism in this area. The Care Crisis Review quotes a number of authorities who have built successful services on embedding relationship-based practice into the heart of their services – and many of those have been judged good and outstanding by Ofsted. The Review also highlights the increasing adoption of a number of ‘helpful approaches or interventions…….evaluated through the Innovation Programme and reported as promising or effective. These included systemic practice, Motivational Interviewing, Signs of Safety, Restorative Practice, and Family Group Conferences. Other effective approaches brought to the attention of the Review included multi-systemic therapy (MST), Video Interaction Guidance, and the Family Partnership Model’. These are all valuable and all have their place – none, in and of themselves, are magic. They are tools, they are the means they are not the end.
So, the key question is – ‘Is the Act still fit for purpose?’ My view is undoubtedly yes. The principles on which it is based remain important ones and it would benefit many an organisation to go back to them and benchmark their current services and service culture against them. Equally, it would be worth Ofsted setting out their inspection criteria more explicitly gains those principles and that they evaluate the work of children’s services against them. As the Care Crisis Report stated, “The principles of the Children Act 1989: the primacy of family, the principle of partnership with parents, the use of voluntary accommodation and the concept of No Order, should be reasserted in policy by government, upheld in practice by local authorities and examined for impact through inspection, by the Regulator.
Mark qualified as a social worker in 1981, and worked as a practitioner and manager in children’s services in Haringey, Newham and Hackney. Since 1997 he has worked as an Assistant /Deputy Director in Thurrock and Barnet and from 2009, and has worked in authorities in intervention - Haringey, Birmingham, Doncaster, Kent, Norfolk. Mark has chaired LSCBs and Improvement Boards and he is a member of the National Child Safeguarding Practice Review Panel. Mark is a trustee of the Family Rights Group.