In a series of posts, Stephen Knafler QC, and colleagues at Landmark Chambers, will examine in detail key provisions of the Children and Social Work Act 2017 and consider how they fit into the wider picture of children’s social care.
In this second blog, Stephen examines the implementation of the corporate parenting principles (CPP). This will be followed shortly by a post considering the local offer for care leavers
Section 1 of the Children and Social Work Act 2017 (the Act) requires local authorities to prioritise the welfare of ‘looked after’, ‘relevant’ and ‘former relevant’ children (referred to in the Act as ‘relevant children and young persons’ (RCYP)) whenever they discharge any of their functions in relation to them. It does this through the corporate parenting principles (CPP), which comprise seven ‘statutory needs’, and through statutory guidance.
The purpose of the CPP is to significantly improve the welfare and life chances of RCYP by requiring local authorities to prioritise their welfare at all times. That does not necessarily require different outcomes, in cases where there are important countervailing considerations, such as a lack of resources. However, the statutory guidance certainly envisages that there will be improved outcomes – as a result of local authorities giving proper consideration to the welfare of RCYP when previously they might not have done, or as a result of local authorities being unable to justify an adverse outcome, having given prior consideration to the CPP. Inevitably, as a relatively powerful process requirement, the CPP are likely to give rise to and/or loom large in judicial reviews of local authority decision-making in relation to RCYP.
The first post in this blog examined the legal content of the CPP; this second post is intended to be more practical and explores how the CPP should be implemented and some of the legal issues that are likely to arise.
Implementing the CPP
The CPP should inform and permeate:
- policy and strategy that has a bearing on relevant children and young persons;
- arrangements within local authorities;
- arrangements between local authorities and other organisations;
- decision-making in individual cases.
Policy and strategy
The CPP should be ‘integral’ to:
- the development and review of a local authority’s ‘local offer’ to care leavers (under section 2 of the Act) as well as its ‘local offer’ to RCYP with SEN or a disability (under section 30 of the Children and Families Act 2004 (see para 4.53 of Children’s Social Care Law));
- the ‘Care Leavers Covenant’ – when that finally appears;
- Joint Strategic Needs Assessments (JSNA) and Joint Health and Well-being Strategies (see para 4.27 of Children’s Social Care Law).
As to how the CPP are relevant when formulating/reviewing general strategy and policy documents, it is suggested that those concerned would be well advised to:
- expressly record that they had regard to the CPP;
- set out each of the seven ‘needs’ within the CPP and explain –
- how each ‘need’ was taken into account and given effect to eg how decision-makers took into account the need to ensure that the proposed policy was in the best interests of, and promoted the physical and mental health and well-being, of RCYP;
- how decision-makers encouraged those persons to express their views, wishes and feelings about the proposed policy (and so on) –
culminating in the overall question: ‘would this policy be good enough for my own child?’;
- establish bodies such as a Children in Care Council or Care Leavers Forum and use online surveys, websites and other forms of modern technology to ascertain and take into account the views of RCYP to ‘feed in’ to general policy-making and strategy. For example, some local authorities have developed apps that allow RCYP to communicate how they feel about the services they are receiving, to social workers and other professionals, such as advocates.
Arrangements within local authorities
Many local authorities have established Corporate Parenting Boards or Panels, to look strategically at how children and care leavers experience their services (para 3.1 of Applying CPP).
Page 11 of Applying CPP suggests that:
- lead members and senior officers promote the idea that looked after children are part of the ‘local authority family’;
- there is regular contact between lead members/senior officers and Children in Care Councils; lead members/senior officers demonstrate that they care, for example, by visiting looked-after children placed outside the area;
- services and practices change as a result of input from looked after children and care leavers;
- local authorities should consider having an annual day/week when looked after children and care leavers meet with lead members/senior officers to discuss relevant issues;
- local authorities appoint a Young Director (and apprenticeship for a care leaver, to mirror the work of the Director of Children’s Services).
Arrangements between local authorities and other organisations
Section 1(1)(d) refers to the need to help RCYP to ‘gain access to, and make the best use of, services by the local authority and its relevant partners’. (For the definition of ‘relevant partners’ see above).
One way of discharging this aspect of the CPP, would be for a local authority and ‘relevant partners’ jointly to consider:
- what services are available for relevant children and young people across the spectrum of relevant organisations;
- whether – having regard to the CPP – those services should be supplemented, or varied, and whether any eligibility criteria should be varied; and
- how these services can be publicised, eg by a supplement to the ‘local offer’ under section 2 of the Act.
Nothing prevents a local authority endeavouring to undertake the same exercise with other organisations that are not ‘relevant partners’, eg local voluntary organisations or indeed commercial entities, and it would be consistent with the CPP to do so.
Already in place, section 10 of the Children Act 2004, requires local authorities to make arrangements to promote co-operation between ‘relevant partners’ with a view to improving the well-being of children in the area (and section 10(5) requires ‘relevant partners’ to co-operate, in turn, with local authorities).
The CPP requires that, when local authorities and ‘relevant partners’ co-operate with each other, in making arrangements to promote the well-being of children in the area, local authorities should seek to include a focus on the CPP, so that the arrangements made promote the CPP. That entails, as a minimum, ensuring a shared understanding of the needs of RCYP and ensuring that arrangements for multi-agency working take account of those needs.
Again, nothing prevents a local authority from endeavouring to make similar arrangements with other bodies who are not ‘relevant partners’ (eg the Home Office and voluntary organisations) and it would be consistent with the CPP to do so.
In practical terms, this can involve a local authority:
- working with schools and other local organisations (the Local Music Education Hub, Bridge organisation, County Sports Partnership, for example) to promote access by RCYP to local leisure and cultural services;
- promoting participation in activities such as the Duke of Edinburgh Award Scheme and National Citizen Service;
- working collaboratively with universities to link care leavers into higher education.
The NRPF Network has published a useful article – How will the Children and Social Work Act 2017 affect migrant children? It emphasises, rightly, that:
- the CPP do apply to migrant children;
- Applying the CPP reminds local authorities (at Annex 2(14)) to pay particular attention to care leavers’ needs arising out of their status of being trafficked or unaccompanied asylum-seekers;
- the CPP, and the guidance directly associated with it, need to be considered together with statutory guidance specific to migrant children, eg Care of unaccompanied migrant children and child victims of modern slavery. See also Safeguarding strategy: unaccompanied asylum-seeking and refugee children.
The NRPF Network also emphasises the importance of undertaking meaningful care planning for migrant children and helping them to achieve a sustainable form of immigration status, as well as, importantly, obtaining their views and input in relation to policy development and services generally.
Decision-making in individual cases
The CPP will obviously be relevant to assessments of need for RCYP.
It would be (to put it mildly) good practice and prudent for assessment documents to record, explicitly, that the assessor has had regard to the CPP and, indeed, to set them out. That would not, however, be enough by itself. The assessment will need to show that, as a matter of substance, the assessor did have regard to the CPP. To give an obvious example, if the assessment does not record the views of the RCYP, it will be difficult to show that, in substance, the assessor had regard to the need at section 1(1)(b), ‘to encourage those children and young people to express their views, wishes and feelings’. Again, therefore, it would be highly advisable for important work with individual children (eg care and pathway plans, and reviews) to include a section that explains how the process has taken into account each of the seven ‘needs’ within the CPP. A failure to do so would, at best, amount to very poor social work practice.
Social workers and others will need to show how they have applied the CPP to specific problems that may arise in relation to individual RCYP, whether those problems are addressed in a needs assessment (as ought normally to happen) or elsewhere. So, for example, suppose a RCYP presents with ‘challenging behaviour’: a specific example given in Applying CPP, at paragraph 4.5, is the need to consider encouraging carers and professionals (and other agencies, such as the police) to use restorative justice and to understand and ameliorate the underlying causes of the behaviour (under section 1(1)(a) of the Act).
The duty is ultimately one of substance. Accordingly, where it is clear that, in substance the decision-maker de facto took into account the CPP – for example, by encouraging the relevant RCYP to express their views, wishes and feelings – the decision-making process ought to be safe from legal challenge. However, it is more than simple prudence or good practice to make express reference to the CPP and to provide a reasonably clear explanation, contemporaneously, as to how the ‘seven needs’ were taken into account. The CPP embody a very important duty. A failure expressly to address them may well not call into question the lawfulness of the decision-making process when that process touches upon areas that are relatively distant from mainstream decision-making about children and where it is, also, clear, that in substance consideration was given to relevant aspects the ‘seven needs’. But where the challenge is to assessment and care planning in relation to individual RCYP, or to strategic decisions that have a direct bearing upon RCYP (eg JSNAs, or service closures decisions), a failure expressly to address the CPP ought to be seen as such poor practice as to invite especially robust consideration on the part of the court, and a quashing of the relevant decision-making unless it is clear that, despite such incompetence, the substance of what is required truly was performed.
The lawyers’ perspective
Lawyers and courts are now used to grappling with legislation that imposes overarching process duties onto social care legislation. There is a decent argument that the CPP require more robust court supervision, than has so far been the case, but the obvious starting point is the courts’ approach to similar, existing legislation, for example:
- under section 1 of the Care Act 2014, which requires local authorities exercising a function under that Act in the case of an individual ‘to promote that individual’s well-being’, as further defined, and to ‘have regard to the following matters’ – a series of eight important factors and needs, such as the importance of beginning with ‘the assumption that the individual is best placed to judge the individual’s well-being’;
- under section 11(2) of the Children Act 2004, which requires local authorities to ‘make arrangements for ensuring that … their functions are discharged having regard to the need to safeguard and promote the welfare of children’;
- under section 149(1) of the Equality Act 2010, which requires local authorities to ‘in the exercise of its functions, have due regard to the need to … eliminate discrimination … advance equality of opportunity … foster good relations between persons who share a relevant protected characteristic and persons who do not share it’.
Having regard to the case-law on these similar process duties, on the one hand, there are likely to be limits to the duty imposed by the CPP:
- like the other duties referred to above, the CPP is clearly a duty of process rather than a duty to achieve any particular result – although, as mentioned above, the statutory guidance envisages that it will, in practice, result in at least some changed outcomes (otherwise, what would be the point?) and, it could be argued, the CPP requires more by way of justification should the outcome not meet one or more of the ‘seven needs’;
- important though the seven needs that comprise the CPP are, they can in principle be outweighed by other factors, such as the local authority’s view as to where the best interests of the RCYP lies, or by limitations on the local authority’s physical or financial resources (see para 4.11 of Applying CPP). Accordingly, local authorities can still make budget cuts, close services and make other decisions adverse to the interests of RCYP providing they take the CPP into account. On the current legal approach to similar duties, it will probably be the case that, ultimately, providing a local authority diligently takes account of the CPP, its ultimate decision how best to proceed will be subject to a conventional public law challenge only – although it is arguable that a more stringent approach is required, in this context;
- although it is good practice to refer expressly to the CPP and to explain how they have been taken into account the duty remains one of substance. Accordingly, a local authority will have acted lawfully if it can show that it did, in fact, take the CPP into account. For example, what was written down at the time may show that the CPP were taken into account, even though no express reference is made to them; or the court may be persuaded by ex post facto evidence that the CPP were taken into account. One would though strongly expect RCYP’s formal assessment and planning documents expressly to consider each of the seven needs, as well as strategy and policy documents directly connected with children’s welfare;
- it will almost certainly be acceptable for the local authority to concentrate on the needs within the ‘seven needs’ that are relevant, rather than any needs that are irrelevant, to the issue under consideration. For example, where a discrete issue arises in relation to a ‘looked after’ child’s education, it may be unnecessary to have regard to the need for them to be safe and to have a stable home (see para 2.6 of Applying the CPP). That would not apply, of course, to a formal needs assessment, which will be expected to consider the RCYP’s welfare in the round and, therefore, all of the seven needs;
- it will probably be lawful for local authorities to make high-level/macro budgetary or other decisions with no or a reduced focus on the CPP, on the basis that implementation will be subject to the CPP and the budgetary decision may be reversed – although one can envisage the Courts taking a different view than heretofore;
- whether or not there has been a breach of the CPP is likely to be a highly fact-sensitive, evaluative question;
- an unduly forensic approach may in some cases amount to an inappropriate attack on the merits of the underlying decision – one can expect the courts to be astute to guard against that;
- as a set of ‘governing principles’ for children, the CPP are pretty feeble. Not only do they only apply to RCYP and to local authorities (cf other public bodies, and private organisations involved with children), they are some way distant from incorporating the most basic obligation, that all public authorities and indeed all private organisations concerned with the welfare of all children, should be required to comply with, found in Article 3 of the United Nations Convention on the Rights of the Child (‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’). Accordingly, the point can be fairly made, that Parliament has chosen to impose a significantly lesser obligation and that the courts should respect that choice.
On the other hand:
- the ‘seven needs’ to which a local authority is required to ‘have regard’ are now statutorily relevant considerations, which means that local authority decision-makers are under a duty (i) properly to understand them; and (ii) consciously to consider them. A failure properly to understand or otherwise take into account one of these ‘needs’ will probably result in the relevant local authority action being held to be unlawful (eg unless the failure has not had a material effect on the end result or some other discretionary bar applies);
- on the current legal approach to legislation of this kind, if local authorities can show that they have conscientiously taken into account the CPP, their final decision will probably be subject to challenge on conventional public law principles only, if the courts follow the path they have so far mapped out. However, one does have the statutory guidance in this case, Applying the CPP: that has to be (i) properly understood; (ii) taken into account; and (iii) followed, unless there is a sufficiently good reason why not;
- whilst the duty is one of substance and not form, it would be very bad practice for decision-making that bears directly on the interests of one or more RCYP not to carefully refer to and address each of the CPP and ought to seriously call into question whether the process can have been a lawful discharge of the CPP duty;
- the duty is probably non-delegable and therefore must be discharged personally by the decision-makers;
- the duty should be discharged at the time and not addressed by way of a ‘rear guard action’;
- it is probably implicit in the CPP that local authority decision-makers are under a ‘duty of inquiry’ to ascertain relevant information necessary to give proper consideration to the CPP – although it is unlikely that the inquiry duty will impose a higher obligation than the Tameside obligation to take Wednesbury reasonable steps to ascertain and consider relevant information. In addition, where the future is uncertain, it is likely to be sufficient to make a rational judgment about the future and then monitor developments;
- decision-making may be treated as unlawful where it contains only token references to the CPP and a ‘tick box’ or ‘formulaic’ approach and where the decision itself and the contemporaneous material fails to show, expressly or by implication, that the substance of the CPP was in truth taken into account.
Further, although the CPP are comparable with the other general process duties referred to above, there are some differences. The ‘seven needs’ are quite specific and are closely geared to issues that are likely to arise, that affect relevant children and young persons. Accordingly, they are likely to result in a higher degree of judicial scrutiny. For example, one of the needs, to which regard must be had, is the need to help RCYP to ‘gain access to, and make the best use of, services provided by the local authority and its relevant partners’. In the case of an individual assessment/care planning process, it may be difficult for a practitioner to demonstrate that he or she did truly have regard to this need unless they can demonstrate that they took positive steps to identify what relevant services were available and to make a reasonable effort to facilitate the RCYP gaining access to them.