Children and social work bill could end the law as we know it

The Department for Education’s (DfE’s) “power to test different ways of working” is set out in the children and social work bill and intended to allow local authorities to apply to the education secretary for permission to opt out of child protection laws. Superficially, deregulation is a very attractive proposition – red tape and bureaucracy undoubtedly are sources of frustration for many professionals and service users. The Munro review of child protection illuminated this problem.

But the argument for and detail of these clauses in the bill have raised significant concern. What is described as a “new way of working” is fundamentally a new way of working the law itself. There is therefore a key question: do these clauses end the law as we know it and replace it with a form of bureaucratic tyranny? Instead of law being made by parliament, will services be determined locally and by a bureaucratic process?

It is the sovereign right of parliament alone to make and amend the law. The law of the land applies to everybody – to every area, service and individual. And the courts alone have the duty and responsibility to determine the administration of the law. A clause that transfers these powers to individual local authorities and the secretary of state is a fundamental challenge and change to the constitution.

The examples cited by DfE to illustrate how this new power might be used are of great concern. These include introducing “flexibility” in the role of independent reviewing officers, who may no longer need to chair care plan reviews for children in “settled placements”.

It is also suggested that adoption and fostering panels will be made optional or subject only to electronic forms of communication. This is a major turning away from their long established and critical role in big decisions that affect children throughout their lives. A “lower level of assessment” for family and friends foster carers is also proposed.

The DfE demonstrates a very poor level of understanding of the operation of these specific examples. For example, it argued – erroneously – that the current requirements for being approved as a foster carer result in family and friends of carers being excluded because every child requires a separate bedroom, a difficult issue given the housing situation of some of these families.

The fact is that the framework for the assessment and support of family and friends carers is facing a significant challenge. At least three children in such placements have died at the hands of family members in recent years, and serious case reviews have taken place into at least two of these. Learning from the terrible suffering of these children should take place nationally and be informed, thorough and responsible. The identified “solutions” and the resources must be embedded in law and apply to every child, every carer and every service. Every one of the DfE’s “innovation” examples can be explored in a similar way.

Currently the law applies to every child, family and service. While there is local provision at one level, the law provides a universal framework. There may be an unacceptable postcode lottery of services now but these clauses would legitimise and entrench this. Above all, they would lead to the undermining of the rights and position of children, their parents and other service users and providers. When the House of Lords explored the clauses in detail, peers voted to strike them out.

The bill was introduced for scrutiny and debate into the Commons before Christmas. The children’s minister, Edward Timpson, tabled amendments to reinstate the clauses. These protect six sections of children’s services legislation from the power to test deregulation and add some safeguards.

Yet core questions remain. Are we testing the potential for local “tyranny” as opposed to upholding the law of the land? Are we encouraging a hotchpotch of local provision and fragile protection rather than high quality services available as a right to every child and young person? Is this the avoidance by government of its responsibility to prioritise and resource a national children’s social care service? Who will benefit in the end? The Commons has a significant opportunity and responsibility to reinstate its sovereign power to make and change the law in the best interests of its citizens. It is to be hoped MPs use their constitutional power to delete these clauses from the bill.