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Children and Families Bill becomes law after receiving royal assent

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on Thu, 03/20/2014 - 11:05
Fight Child Protection Department Corruption: 
Children and Families Bill becomes law after receiving royal assent

Note: The following is the spin put out by the government to gloss over the fact that it will now be even easier for Social Services in the UK to steal children, and sell them off on the internet on adoption websites. Hundreds of parents have already been jailed for speaking out about this obvious violation of human rights.

Children's directors welcome 'significantly improved' Act, but warn more work is needed to ensure it supports workers on the frontline

Children in care, prospective adopters and young carers can look forward to greater government support after the Children and Families Act today received royal assent.

Under the Act, looked-after children will be able to stay with their foster families until they turn 21, while care proceedings will be subject to a controversial 26-week time limit – intended to reduce delays for children and adopters – and young carers will have the right to much clearer support from their local authorities.

Major changes in the Act:

• children in care have choice to stay with their foster families until they turn 21
• young carers’ and parent carers’ have clearer rights to support from councils
• reforms to children’s residential care to make sure homes are safe and secure

• expert evidence in family cases concerning children will be permitted only when necessary to resolve case justly
• 26-week time limit for completing care and supervision proceedings, with possibility of extending to eight weeks in some cases

“The Act is all about reforming services for vulnerable children – reflecting this government’s deep determination to give every child, whatever their start in life, an equal chance to make the best of themselves,” said children’s minister Edward Timpson.

“Our adoption reforms will help the 6000 children who need loving homes to be adopted. Our reforms to Special Educational Needs will see a system introduced, which is designed around the needs of children and will support them up to the age of 25.

“For children coming into the care system, the new 26 week time limit for care proceedings will reduce unnecessary delays.”

Andrew Webb, president of the Association of Directors of Children’s Services (ADCS), said the Children and Families Act had changed “significantly for the better” since the original Bill drafts.

“ADCS, through its members, has been working with the government and partners to try to shape the Act and plan for its successful implementation.

Local authorities have been trialling ways to turn the legislation into positive changes for children especially in the two key areas of Special Educational Needs and Adoption and Family Justice,” Webb said.

“We welcome these reforms and we think they are more likely to succeed because they have been grounded in our daily work.”

But he warned there is a lot more work to do to make sure the whole Act, including some of the newer amendments, is developed through regulations and guidance to support those on the front line to implement them.

Simon Parkinson, board member of the campaign group Every Disabled Child Matters, said: “The Act is the culmination of over two years work aimed at improving the support system for disabled children and those with special educational needs.

“However, many families are yet to be persuaded that the battles for support will end, and there is undoubtedly more work to be done to ensure that the practice guidance contained in the new Code of Practice is fit for purpose.”

The government is consulting on a series of adoption regulation changes, and guidance for social workers on how to navigate the new system. The Children and Families Act will come into force over the coming months.

By Camilla Pemberton

communitycare.co.uk

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Belinda Schwehr examines provisions for councils to contract out social work functions, assessing how these might be used and the risks they pose

Readers will be aware that the Care Bill provides a legal right for the very first time for councils to contract out mainstream social work functions related to assessment, resource allocation and care planning. By contrast, social care service provision functions, have always been able to be secured through contractual arrangements with providers.

This means that anyone could be commissioned to do this sort of work. Instead of having an outside organisation do all of the fact finding, make a recommendation, for instance on eligibility, and then have this returned to a local authority employee for decision, this change means that the outsider could actually apply the threshold, make the decision, and bind the council for whom it was acting.

Practical uses to which this power might be put

If a council decides to take this step, it might do so in bulk, having secured the agreement in advance of a corps of the social work staff to turn themselves into a social enterprise, perhaps; or merely do so in part, as and when needed for workload spikes or specialist assessments.

In particular, it might contract out portability-related assessments, in connection with the new duty to tell people who need services what they might qualify for, if they come to settle in the area of their own volition.

Councils might contract out their input into continuing healthcare reviews too, since a person placed out of area by a clinical commissioning group can very easily have their eligibility for CHC removed following review without the old local authority with ordinary residence being told. The council on the spot at the time will have no interest in defending the removal of CHC eligibility, because the liability will return to the old council to pick up commissioning the service user’s needs.

A practical use to which the power could easily be put, in terms of the policy to prevent and reduce need before it triggers the national minimum threshold, would be for reablement providers to make the eligibility decision at the end of the period of reablement. The provider could then work with the person’s carer or neighbours, whom they would know by then, to determine what informal support should be assumed to be available, and then make the ‘duty to meet need’ decision that the Care Bill envisages.

Another use would be for NHS staff on hospital discharge teams – outside of a proper partnership agreement whereby the functions could always have been cross-delegated – making eligibility and provision decisions regarding social care services for those found to be ineligible for CHC. Maybe that’s not quite such an attractive thought for directors of social care services!

Competencies and accountability

Councils will need to be careful in setting out the specification, and individual workers will need to think hard, if they wish to avoid the sort of criticism that ensued for Cambridgeshire and an independent social worker, in one of the leading cases under the current legal framework, heard by the Supreme Court in 2012.

This involved an appeal by a disabled service user that the £85,000 personal budget he had been allocated was irrational and not supported by adequate reasons. An independent social worker had assessed his needs and costed them at £157,000. The court dismissed the appeal and found in respect of the independent social worker:

Mr C’s .. report, dated 10 December 2009, was a most unhelpful document. It was not an expert’s report: it was a presentation of what the appellant and his mother wanted. Mr C’s costings totalled £157k. Into his figures he brought forward the suggestion that paid care for the appellant was required to be purchased for 14 hours … on each day of the year… Mr C did not suggest that, in his expert view, paid care of that magnitude was necessary, still less did he explain why such should be. He said only that it was “reported” that it was necessary: the “report”, of course, had come from the family and no doubt in particular from the mother…Unfortunately the uncritical endorsement of the wishes of the appellant and of the mother by Mr C in his addendum report led them to believe that he had become entitled to provision of such magnitude.”

It is worth noting that the Cambridgeshire case (KM) is the best possible guide to what the current legal framework requires of social care assessment and planning and funding allocation staff. There will need to be consideration of those steps under the new bill, although the pathway to a duty to meet unmet eligible needs is being changed significantly.

There is as yet no requirement that this function be entrusted only to an independent social work practice, as was defined in the pilot scheme, managed by a qualified social worker. Regulation making power exists in the bill under which a requirement could be added, by government, but we still await the regulations.

Commissioning burden

There is, however, a very great commissioning burden to ensure that the successful bidder is competent. Authorities can decide what constitutes competence of any assessor or care planner, but if it gets that concept wrong in principle, or if the service provider messes up by misunderstanding the law governing social care assessment, resource allocation and care planning, the council is the liable party, in relation to remedies.

That would include, for now, judicial review, or, potentially, recourse to the independent appeal system that is mooted as an answer to the anticipated demand for review and redress for inappropriate approaches to decision making.

The council might commission this service in and obtain contractual indemnities in the normal way. But for liability claims ultimately brought against it, based on what the provider has done or not done, there will be no escaping local authorities’ non-delegable duties in the Care Bill’s legal framework.

As the Cambridgeshire case shows, outsourcing this function is not the same as commissioning the opinion of an independent social worker, in the context of dispute resolution or professional debate; and nor is it the same as commissioning independent advocacy, or independent mental capacity advocacy.

Potential conflicts of interest

Those who commission the service will need to think about the implications for conflict of interest, which were never properly addressed by proponents of personalisation when it first became fashionable.

If a service provider is to be the assessor, as well as the provider, can that organisation’s employee properly straddle the two horses without ‘bigging up’ the approach to what is needed, even if that is merely done by way of aspirational practice, say, by a charitable entity, and not just motivated by cynical profiteering?

And if a charity ends up doing this kind of input for a council, can it honestly say it is doing it for full cost, in terms of Charity Commission rules that a charity must not subsidise the duties of the State for less than full cost?

Take a support provider who has got really involved in individual service funds and brokering the use to which a direct payment is put, in conjunction with the service user, and then starts to do this kind of assessment work.

The service user might ask, ‘great, in principle, but who are you actually doing this for, now?’. The answer can no longer be, ‘well, you, of course!’. The provider will have at least three hats on: delegate of the council for assessment and review; agent of the client for the management of the direct payment; and provider, acting in its own interest, in relation to a contract with either the client for the services provided under the direct payment, or the council, for any contracted managed support being paid for directly.

Exclusion of safeguarding functions from this power

Safeguarding functions cannot be delegated; and I think that this must mean the council’s duty to make enquiries cannot be delegated, not the actual making of the enquiry once one is triggered, and the decision as to what can or should be done.

That is because a safeguarding enquiry is, in effect, an enquiry made under social care assessment powers; and a safeguarding response that is not merely a referral to another agency for its own actions, is the delivery of a social care service.

It may well be, however, that a council’s statutory safeguarding board might recommend that this form of investigation is not delegated, or that if the fact-finding part of a safeguarding investigation is ‘sent out’ to a commissioned body or individual, it should still come back to the case conference setting for a formal multi-agency decision. Putting the decision into effect will, of course, be the duty of whichever body is the one whose statutory functions are engaged by the decision. We will have to await the guidance on this issue as well.

Care Bill workforce training developments

It turns out that the government will be funding the provision of free training materials for social care staff affected by the Care Bill, and train the trainer sessions in the summer.

The consultation put out on behalf of the government by Skills for Care  seeks to identify, through a survey, the range of staff affected, the breadth of material wanted, and the depth and detail to which the Care Bill training needs to go.
However, as for the intermediate and advanced levels of training needed, for staff – or contracted out social work decision makers who can bind the council for who they are functioning under the new power – it seems a reasonable assumption that the sector needs legally literate trainers to manage legal risk and provide a service within a system that is accountable, lawful and fair.
Academics have berated the lack of legal literacy in social work and social care, and it’s always part of the problem in serious case reviews and judicial reviews, and applications to the Court of Protection. But when the adults’ social care sector is being given brand new legislation, hugely complicated by the Dilnot provisions, which were inserted into a bill that was just supposed to consolidate significant legal principles, it is potentially a very serious risk management issue. And since the bill is intended to come into force next April, it is a very urgent one as well.

My response to that need is to train up a team of trainers, through a Britain’s Got Talent style competition, who will be able, genuinely, to answer the legal questions that staff are bound to ask. Find out more, including how to apply.

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The potential injustices likely to arise from the Children and Families Act

The government failed to listen to concerns from reputable organisations, creating an Act that is not child-centred,

The Children and Families Act, which received royal assent last week, is a far-reaching piece of child legislation that involves a significant shift in the role of the state in family life.

For example, section 2 (fostering for adoption) enables a local authority to place a child with a prospective adopter, without there even having been court proceedings, to consider whether the child should be removed permanently from their parents – and without the parents having had legal advice about their options.

Reflect on that for a moment and you’ll start to realise the potential injustices that are likely to arise as a result. But despite lobbying from us, the British Association of Adoption and Fostering (BAAF), The College of Social Work and many other organisations of good repute, the government pressed ahead with applying foster for adoption not only to children on a care order, but also those in care with the voluntary agreement of their parents.

Speed over suitability

These include vulnerable parents, including care leavers, who may without advice, consent for their baby to be looked after, for what they may assume will be just a short time.

Currently, family members do not always come forward as potential carers for a child until care proceedings are underway. They may not be aware about the child’s circumstances or they may feel reluctant to jeopardise the parents’ case.

The acceleration of care proceedings arising from the now-statutory 26 week timeframe is therefore likely to result in many otherwise suitable placements with relatives being ruled out, due to the speed of the process rather than an assessment of their suitability.

To address this, we lobbied for there to be a duty on local authorities to identify and explore suitable family options before proceedings are issued, for example through family group conferences. Unfortunately, the government didn’t accept this amendment.

Them and us

I am somewhat baffled as to why there has been such little fuss over such potentially far-reaching reforms. I fear that families involved in the child welfare system have been ‘othered’ to such an extent, that they are deemed undeserving of the rights that families like ‘ours’ assume.  But many families contacting Family Rights Group for advice never thought it would happen to them, never thought their daughter would get mixed up in a violent relationship, never thought it would be them having a breakdown and struggling to cope.

It is somewhat ironic that at the same time as politicians were passing legislation that undermines the child’s chances of being raised safely by their families, Supreme Court judges were upholding the importance of the human rights of all children and their families.

This included the principle that to sever such a relationship through adoption is a draconian step, which should only pursued if all other options have been considered and ruled out.

The positive parts of the Act

It would be wrong to portray these significant concerns as indicating opposition to the entirety of the Act. Parts of it are extremely welcome, including the right of children in care to remain with their foster carers beyond 18, improved provisions for adopters and a new framework of support for children with a statement of special educational needs.

Yet at the heart of it is a grave injustice: whereas the Act rightly secures improved support for adopters, including paid leave from work akin to maternity leave, similar help for family and friends carers is missing.

There are around 30,0000 children who cannot live with their parents who are being raised by family and friends carers, most commonly grandparents or older siblings.

The wrong direction

Research shows these children have suffered the same adversities as those who are in the care system or adopted, yet the vast majority of these children and their carers, including special guardians, are left to fend for themselves.

Nearly 40% of family and friends carers are forced to leave their job to take on the children. Three quarters end up suffering severe financial hardship. Significantly, many of the children get no access to help, such as life story work or bereavement counselling.

That these children do better overall than those in the care system is in spite of, not because of, the state. It’s time we created a truly child-centred system in which support for vulnerable children reflected their needs, not their legal status.

Unfortunately, this Act seems to be going in the opposite direction.

  • Cathy Ashley is chief executive of the Family Rights Group
  • communitycare.co.uk