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Children and Social Work Act 2017

Contents

Legal background

Looked after children

Corporate parenting principles

  1. The term "corporate parent" is generally used to describe the relationship between a local authority and a child who is "looked after" within the meaning of section 22 of the Children Act 1989 ("the 1989 Act"), or between a local authority and a child or young person who was looked after by them and in respect of whom the local authority has ongoing duties and powers under sections 23A to 24D of the 1989 Act. This latter group of children and young people are referred to as "care leavers".
  2. The 1989 Act and legislation made under it impose a range of specific duties on local authorities towards looked after children and care leavers, for example through the Care Planning, Placement and Case Review (England) Regulations 2010 and the Care Leavers (England) Regulations 2010. Thus local authorities must assess the child or young persons’ needs, prepare and review care plans (for looked after children) and pathway plans (for care leavers) and provide certain types of assistance. There are also some general duties imposed on local authorities in the discharge of their functions in respect of children and young people. Section 22(3) of the 1989 Act requires a local authority to safeguard and promote the welfare of the children it is looking after. Section 10 of the Children Act 2004 requires a local authority in England to make arrangements to promote cooperation with specified partners with a view to improving the wellbeing of children in their area. Section 11 of the Children Act 2004 further requires a local authority in England to make arrangements to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. Section 19 of the Children and Families Act 2014 requires a local authority to have regard to the need to support and involve children and young people when exercising functions in connection with special educational needs and disability.

Care leavers in England

  1. The term "care leavers" is used to describe those children and young people who fall within scope of local authority duties set out in sections 23A to 24D of the 1989 Act.. Under section 30 of the Children and Families Act 2014 a local authority in England must publish information about the provision which it expects to have available for children and young people who have special educational needs or a disability. Schedule 2 of the Children Act 1989 already places a duty on local authorities to publish information about the services it provides under sections 17, 18, 20, 23B to 23D, 24A and 24B and, where they consider appropriate, about the provision of services by others that local authorities have the power to provide under those sections.
  2. Sections 23B and 23C of the 1989 Act impose duties on local authorities to provide assistance and support to relevant children and former relevant children (namely, children who were formerly looked after by a local authority). Included in the assistance to be provided is the duty to appoint a personal adviser if certain criteria are met. Section 23CA of the 1989 Act further requires a local authority to carry out a needs assessment, to prepare a pathway plan and to appoint a personal adviser for a former relevant child, but only if that child has informed the responsible local authority that he wishes to pursue a programme of education and training.

Educational achievement

  1. Section 22(3A)-(3C) of the 1989 Act requires a local authority in England to appoint an officer employed by them to be responsible for promoting the educational achievement of children looked after by them. This duty forms part of the wider duty of a local authority to safeguard and promote the welfare of looked after children under s22(3) of the 1989 Act.
  2. There is a linked duty, in section 20 of the Children and Young Persons Act 2008, on the governing body of a maintained school in England and Wales to designate a person to be responsible for the promotion of the educational achievement of looked after pupils and care leavers. Regulation 3 of the Designated Teacher (Looked after Pupils) (England) Regulations 2009 requires that the designated person must have qualified teacher status.

Care and adoption proceedings in England and Wales

  1. Section 31 of the 1989 Act enables a court, on the application of a local authority (or authorised person) to make a care order which places a child in the care of a local authority. A court may only make such an order if it is satisfied that the section 31(2) ‘threshold test’ has been met and that making the order would be in the child’s best interests.
  2. When deciding whether to make a care order, the court must consider the ‘permanence provisions’ of the section 31A care plan (section 31(3A) of the 1989 Act). The section 31A care plan is a plan for the future care of the child and is prepared by the local authority. Section 31(3B) of the 1989 Act defines the ‘permanence provisions’ as "such of the plan’s provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following", and there follows a list of three categories of potential options for a child: the child to live with their parent(s) or wider family/ friends or for the child to be adopted or for the child to have some other long term care provision.
  3. Section 1(4) of the Adoption and Children Act 2002 lists the matters the court and adoption agencies must have regard to when coming to decisions relating to the adoption of a child. Section 1(4)(f) requires courts and adoption agencies to have regard to the relationship a child has with relatives and any other person the court or adoption agency considers relevant.

Secure accommodation

  1. For some years, local authorities in England and Wales have sought court orders under section 25 of the 1989 Act, authorising the placement of looked after children in secure accommodation in Scotland. In September 2016 a High Court judgment (Re X & Y 2016 EWHC 2271 (Fam)) identified that such orders did not have force in Scotland, and consequently that they were unenforceable there.

Safeguarding of children

  1. The obligation on a local authority to establish a Local Safeguarding Children Board (LSCB) was imposed by section 13 of the Children Act 2004. The functions of an LSCB are set out in section 14 of that Act, and further functions are conferred by the Local Safeguarding Children Boards Regulations 2006. The function of undertaking a serious case review in cases where abuse or neglect is suspected and a child has died or has been seriously harmed currently lies with the LSCB under regulation 5(1) (e) and 5(2) of the 2006 Regulations. The function in relation to child deaths currently lies with the LSCB under regulation 6 of the 2006 Regulations. The LSCB is responsible for ensuring the collection and analysis of information about each death (with a view to identifying the need for a review by a child death overview panel); matters of concern affecting the safety and welfare of children in the area of the authority and any wider public health or safety concerns arising from a particular death or from a pattern of deaths in that area; and for putting in place procedures for ensuring that there is a coordinated response by the authority, their board partners and any other relevant persons to an unexpected death.

Other provisions relating to children in England

Children’s social care: pre-employment protection of whistle-blowers

  1. The Public Interest Disclosure Act 1998 ("PIDA") established a whistleblowing framework, the purpose of which is set out in the preamble as "to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation". The whistleblowing framework currently operates within the scope of employment law and complaints brought in relation to PIDA are dealt with by the employment tribunals. The legislation protects employees or "workers" from being subjected to either detriment or dismissal on the ground that they have made a protected disclosure.
  2. A worker who blows the whistle, by making a protected disclosure in accordance with the criteria set out in Part IVA sections 43B to 43H of the Employment Rights Act 1996, has the right not to be unfairly dismissed or suffer a detriment as a result of having made that disclosure.
  3. Currently, job applicants, in general, do not fall within the definitions of worker. However, section 49B of the ERA provides a power to the Secretary of State to make regulations prohibiting an NHS employer from discriminating against an applicant because it appears to the NHS employer that the applicant has blown the whistle. Section 49B was inserted into the ERA by sections 149(1) and (2) of the Small Business, Enterprise and Employment Act 2015.

Combined authority functions relating to children

  1. Under Part 6 of the Local Democracy, Economic Development and Construction Act 2009, local authorities in England are able to join together to form wider Combined Authorities. Until 2016 local authorities were only able to transfer certain functions connected with transport and economic development to Combined Authorities, however, following the coming into force of the Cities and Local Government Devolution Act 2016 local authorities are able to transfer a significantly wider range of functions, including those connected with children’s social care. Under section 497A of the Education Act 1996, as applied to children’s social care functions by section 50 of the Children Act 2004 and section 15 of the Childcare Act 2006, the Secretary of State may issue directions to a local authority, including directions requiring children’s social care functions to be discharged by another person on behalf, of or instead of the local authority, where functions are being performed to an inadequate standard.

Relationships, sex and PSHE education

  1. The Education Acts of 1996 and 2002 and the Education (Independent School Standards) Regulations 2014 set out schools' current duties in relation to the teaching of sex education and PSHE. Section 80 of the Education Act 2002 currently imposes a duty on maintained secondary and maintained special secondary schools to provide sex education for all registered pupils at these schools. Sections 403 to 405 of the Education Act 1996 set out further conditions when sex education is taught including the requirement for governing bodies and head teachers to have regard to the Secretary of State’s guidance, to make, and keep up to date, a separate written statement of their policy with regard to the provision of sex education and for a pupil to be excused from receiving sex education. Paragraph 2(2)(d) of Schedule 1 of the Education (Independent School Standards) Regulations 2014 currently places a requirement on Independent schools (not including Academies) to teach PSHE.

Social workers in England

Regulation of social workers in England and associated provisions

  1. Social work has existed as a profession for many years, but it has only been subject to statutory regulation since 2001. Between 2001 and 1 August 2012, social workers and social work students were regulated by the General Social Care Council ("GSCC"). The GSCC was an executive, non-departmental public body in England established under Part 4 of the Care Standards Act 2000 (‘the CSA 2000’), sponsored by the Department of Health and abolished as part of an arm’s-length body review. Its functions were moved to the Health Professions Council which then became the ‘Health and Care Professions Council’ to reflect its wider remit (‘the HCPC’) under provisions in the Health and Social Care Act 2012. Part 4 of the CSA 2000 was amended by the HSCA 2012 to remove references to the GSCC and to reflect the transfer of regulation to the HCPC.
  2. The Secretary of State has certain functions in relation to social care workers (which includes social workers) set out in section 67 of the CSA 2000, but may not exercise the following functions in relation to a person who is a registered social worker with HCPC: ascertaining what training is required by persons who are or wish to become registered social workers; and drawing up occupational standards in relation to registered social workers.
  3. The principal legislation governing regulation by the HCPC is section 60 of the Health Act 1999. This provides for Her Majesty by Order in Council to make provision for the purpose of regulating a wide range of health professions, social workers and other care workers. The power is subject to a range of limitations, in particular the supplementary provisions in Schedule 3 to the 1999 Act. Regulation by HCPC is provided for by the Health and Social Work Professions Order 2001 (2002/254, ‘the 2001 Order’).
  4. The HCPC is subject to oversight by the Professional Standards Authority ("the PSA") which was established under the NHS Reform and Health Care Professions Act 2002 and which also oversees a number of other regulatory bodies. The 2001 Order provides for approval by the Privy Council of new rules and regulations made by HCPC in respect of the professions it regulates.
  5. Relevant EU legislation is the Recognition of Professional Qualifications Directive 2005/36/EC ("the MRPQ Directive"), as amended by Directive 2013/55. The MRPQ Directive replaced 15 other Directives in the field of recognition of professional qualifications; and provides for a general system of recognition in relation to certain categories of professionals, which include social workers. The HCPC is the relevant competent authority in relation to social workers in England for the purposes of recognition of qualifications.

    6. Approved Mental Health Professionals

  6. Approved Mental Health Professionals (‘AMHPs’) have a key role in detaining mentally disordered patients under the Mental Health Act 1983 (‘the Mental Health Act’): they make applications for assessment and detention. AMHPs perform certain other functions, for example, in relation to community treatment orders and guardianship. The Mental Health Act provides for the approval of AMHPs and the approval of AMHP courses in England and Wales. In 2008, the Act was amended to allow professions other than social workers to qualify as AMHPs.

    7. Best Interest Assessors

  7. The Mental Capacity Act 2005 (‘the MCA 2005’) makes provision for deprivation of liberty safeguards to authorise a deprivation of liberty in a hospital or a care home. This entails six assessments:
    1. age assessment (to confirm the person is 18 or over);
    2. no refusals assessment (to establish whether an authorisation would conflict with other existing authority for decision-making for that person, such as an advance decision to refuse treatment under the MCA 2005);
    3. mental capacity assessment (to establish whether the relevant individual lacks capacity to decide whether they should be accommodated in the hospital or care home);
    4. mental health assessment (to determine whether the relevant individual has a mental disorder within the meaning of the Mental Health Act);
    5. eligibility assessment (this is met unless the person is ineligible to be deprived of their liberty under Schedule 1A to the MCA);
    6. best interests assessment (to establish whether deprivation of liberty is occurring or is going to occur, and if so, whether it is in the best interests of the relevant individual to be deprived of liberty; necessary for them to be deprived of liberty in order to prevent harm to themselves; and a proportionate response to the likelihood of suffering harm and the seriousness of that harm) – see paragraphs 38 to 45 of Schedule A1 to the MCA 2005.
  8. The relevant assessment to this Act is f, the best interests assessment. The MCA 2005 and Regulations made under it provide for the selection of a Best Interests Assessor, and this Act deals with the specification of training for Best Interests Assessors.

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