The Children and Social Work Act 2017: the corporate parenting principles

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 first post, Stephen provides an introduction to the corporate parenting principles (CPP). This will be followed shortly by a post relating to the implementation of those principles.

Introduction

Section 1 of the Care Act 2014 creates a set of governing principles, aimed at ensuring that the well-being of adults is central to the discharge of local authority functions under that Act. Section 1 of the Children and Social Work Act 2017 (‘The Act’) goes further and 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.

Here we look closely at the content of the CPP and explore how the principles should be implemented and the legal issues that are likely to arise.

Before moving on, however, it may be useful to pause and reflect on how the CPP fit into the existing corpus of overarching welfare duties relevant to children. As set out in chapter 1 of Children’s Social Care Law (LAG, 2018):

  • where children’s rights under Article 8 of the European Convention on Human Rights (ECHR) are engaged, all public authorities including of course local authorities are required to treat the best interests of the child as a primary consideration: Nzolameso v City of Westminster [2015] UKSC 22, (2015) 18 CCLR 201;
  • otherwise, local authorities and some other public bodies (including the NHS, the police and the Secretary of State for the Home Department) are required to make arrangements to ensure that their functions are discharged having regard to the have due regard to the need to safeguard and promote the welfare of children: section 11(2) of the Children Act 2004.

Two considerations leap out:

  • first, yet again, Parliament has failed to take the opportunity to take the obviously necessary and long overdue step of straight-forwardly incorporating into national law the duty at 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’);
  • on the other hand, although the CPP only apply directly to local authorities, and only to limited classes of children and young persons, the CPP do comprise seven very specific ‘needs’. One suspects that the power of the CPP will derive from the range and specificity of these seven needs. They are designed to, and will, impose a great deal on the thought process of a conscientious decision-maker; undoubtedly, also, they will make it difficult for the less conscientious, or well-informed, decision-maker, to sustain the lawfulness of their decision-making.

Overview of legislation

The CPP are found in section 1 of the Act, at the start of Part 1. They came into force on the 1 April 2018.

Part 1 of the Act also includes a variety of specific steps which local authorities are required to take, to improve the welfare and life chances of ‘looked after’ children and ‘care leavers’.

The CPP, by contrast, comprise general principles that local authorities are required to ‘take into account’ and they have very wide effect. They are required to be taken into account not just when a local authority is discharging a function under the Act or the Children Act 1989 or one of the other enactments that specifically applies to children but, also, whenever a local authority discharges any function that has an impact on RCYP, whether that function is the local authority’s social care function, or its waste collection function – and everything in between.

The structure of Part 1 of the Act is as follows:

  • section 1 requires local authorities to ‘have regard’ to the CPP when they carry out their functions in relation to RCYP;
  • sections 2 and 3 require local authorities to publish their ‘local offer’ for care leavers and, also, provide additional services to ‘former relevant children’;
  • sections 4 to 7 comprise further provision to promote the educational achievement of previously ‘looked after’ children;
  • sections 8 to 10 make further provision in relation to care orders, adoption and secure accommodation.

The purpose of the CPP

It is clear from the language used in section 1 of the Act that the purpose of enacting the CPP is to influence and permeate the mind-set and culture of local authorities, from top to bottom, and across the whole range of local authority activity, so that whenever a local authority contemplates taking action that is relevant to one or more RCYP it brings the anxious concern of a pragmatic but loving, aspirational and enlightened parent to bear.

The statutory guidance (see below), Applying CPP to looked-after children and care leavers: statutory guidance for local authorities, drives that message home, inter alia, at:

  • para 1.1 (‘the critical question that local authorities should ask … is: “would this be good enough for my child?”’);
  • para 1.3 (‘A strong corporate parenting ethos means that everyone from the Chief Executive down to front line staff, as well as elected council members, are concerned about those children and care leavers as if they were their own. This is evidenced by an embedded culture where council officers do all that is reasonably possible to ensure that the council is the best ‘parent’ it can be to the child or young person’).

In particular, one thing that the CPP do through the statutory guidance, Applying CPP, is to enable and strongly encourage dynamic and thoughtful local authorities to innovate new solutions for promoting the welfare of RCYP in all the variety of ways that enlightened and aspirational parents would – from promoting their educational achievement through to higher education, to providing apprenticeships, to setting up bank accounts, Junior ISAs and so on. Applying CPP contains a large number of examples of good practice, clearly designed to encourage and legitimise creative efforts to improve the life chances of RCYP.

Unfortunately, that ‘best parent’ very often has seriously limited resources and one of the problems with the CPP is that it continues to allow limited resources to justify local authority action that is significantly adverse to the best interests and welfare of RCYP (see below).

The CPP

It has been implicit in legislation, and explicit in statutory guidance, for many years, that local authorities should treat the children they are looking after, and care leavers, analogously to how a good parent treats their children. For example, paragraph 1.15 of The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review provides as follows:

1.15 The responsibility of local authorities in improving outcomes and actively promoting the life chances of children they look after has become known as ‘corporate parenting’ in recognition that the task must be shared by the whole local authority and partner agencies. The role of the corporate parent is to act as the best possible parent for each child they look after and to advocate on his/her behalf to secure the best possible outcomes.

Section 1 of the Act gives statutory force to seven aspects of good parenting, to be known as the CPP.

Paragraph 1.5 of Applying CPP explains that CPP ‘comprise of seven needs that local authorities in England must have regard to whenever they exercise a function in relation to looked-after children or care leavers’.

Section 1(1) of the Act defines the CPP in this way:

1(1) A local authority in England must, in carrying out functions in relation to the children and young people mentioned in subsection (2), have regard to the need–

(a) to act in the best interests, and promote the physical and mental health and well-being, of those children and young people;

(b) to encourage those children and young people to express their views, wishes and feelings;

(c) to take into account the views, wishes and feelings of those children and young people;

(d) to help those children and young people gain access to, and make the best use of, services provided by the local authority and its relevant partners;

(e) to promote high aspirations, and seek to secure the best outcomes, for those children and young people;

(f) for those children and young people to be safe, and for stability in their home lives, relationships and education or work;

(g) to prepare those children and young people for adulthood and independent living.

An immediate and rather fundamental query arises: does the duty to ‘have regard to the need’ to, for example, ‘act in the best interests’ of RCYP mean that local authorities are under a duty to ‘act in the best interests’ of RCYP?

The answer is, unfortunately not. The duty is a duty to take into account that local authorities need to act in the best interests of RCYP, but it is not a duty to actually act in the best interests of RCYP. Equally, it is not a duty merely to take into account the desirability of acting in the best interests of the RCYP – ‘need’ is much stronger than ‘desirability’.

It is a strange way of legislating, albeit one that seems to have become fashionable. On one view, local authorities are required to exercise their functions on the basis that it is necessary to, for example, ‘act in the best interests’ of RCYP so that they must ‘act in the best interests’ of RCYP unless that would result in disproportionate damage to some other, important consideration.

On another view, local authorities may be required to do no more than bear in mind that, in principle, it is very important to, for example, ‘act in the best interests’ of RCYP, and remain entitled to form their own view (subject only to a conventional public law challenge) as to how important that is, in the particular circumstances of the case and as to what weight to be attached to countervailing considerations.

That is the approach that has been taken in the context of the PSED: see R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (2013) 16 CCLR 479 at para 26(8).

The ‘relevant partners’ referred to in section 1(1)(d) are defined by section 1(3) as being the entities referred to in section 10(4) of the Children Act 2004 which, for convenience, are defined as follows:

(4) For the purposes of this section each of the following is a relevant partner of a local authority in England–

(a) where the authority is a county council for an area for which there is also a district council, the district council;

(b) the local policing body and the chief officer of police for a police area any part of which falls within the area of the local authority ;

(c) a local probation board for an area any part of which falls within the area of the authority;

(ca) the Secretary of State in relation to his functions under sections 2 and 3  of the Offender Management Act 2007, so far as they are exercisable in relation to England;

(cb) any provider of probation services that is required by arrangements under section 3(2)  of the Offender Management Act 2007 to act as a relevant partner of the authority;

(d) a youth offending team for an area any part of which falls within the area of the authority;

(da) the National Health Service Commissioning Board;

(db) any clinical commissioning group for an area any part of which falls within the area of the authority;

(f) a person providing services in pursuance of section 68  of the Education and Skills Act 2008 in any part of the area of the authority;

(fa) the governing body of a maintained school that is maintained by the authority;

(fb) the proprietor of a school approved by the Secretary of State under section 342  of the Education Act 1996 and situated in the authority’s area;

(fc) the proprietor of a city technology college, city college for the technology of the arts or Academy situated in the authority’s area;

(fd) the governing body of an institution within the further education sector the main site of which is situated in the authority’s area;

(fe) the Secretary of State, in relation to the Secretary of State’s functions under section 2  of the Employment and Training Act 1973.

The CPP guidance

Section 1(4) of the Act provides that a ‘local authority in England must have regard to any guidance given by the secretary of state as to the performance of the duty under subsection (1)’.

The most relevant statutory guidance is Applying Corporate Parenting Principles to looked-after children and care leavers: statutory guidance for local authorities (‘Applying the CPP’).

Applying the CPP makes clear, on page 4, that it is intended to be read alongside, and not substitute, existing statutory guidance at volumes 2 and 3 of the Children Act 1989 Guidance and Regulations. It does two things:

  • first, it provides a really useful explanation of the purpose of the CPP and how they are to be applied and implemented;
  • second, it provides helpful examples of how the CPP can be implemented, in a way that is designed to encourage and sanction innovative approaches, not just to meeting needs but, above all, to promoting the welfare of relevant children and young persons.

Applying the CPP is, of course, required reading for all those in local authorities (officers and members) whose functions touch upon relevant children and young persons and, also, for relevant officers and members of ‘relevant partners’. Not only that, as a statutory ‘relevant consideration’, that is required to be taken into account, those who make decisions affecting relevant children and young persons will need to be able to show that they properly understood Applying the CPP,took it into account and acted in accordance with it unless they had a good reason to take a different course.

As ever, the best way, by far, of demonstrating this thought process is by making a contemporaneous record of it, within the document that records the decision, or elsewhere in the associated paperwork.

Other guidance

Get in on the Act, is a general guide, providing an overview – rather like an explanatory note – of the Act and what each section provides.

The Corporate parenting resource pack  is a (non-statutory) good practice guide, published by the Local Government Association. It emphasises that ‘[e]very councillor and officer within a council has a responsibility to act for [looked after] children and young people as a parent would for their own child’ and gives many useful examples of good practice, in this regard.

It also makes the useful practical suggestion that all councillors and members of all committees ‘have a responsibility to consider how reports before them impact upon children in care and care leavers’ (page 5). Accordingly, it is worth considering including in all formal reports for decision-making, some reference to the CPP and to how what is proposed may affect relevant children and young people.

As its title suggests, Support for care leavers resource pack, is focused more on sections 2 and 3 of the Act although, of course, section 1 and the CPP are highly relevant to those sections, and all other provisions elsewhere that bear upon the support provided for care leavers.

The NRPF (No Recourse to Public Funds) Network website contains a useful reminder that the CPP do apply to trafficked and migrant children and explains why/how those particular categories of (particularly vulnerable) children should be supported.

Children England provides at a high-level summary of main provisions of the Act, but a useful and clear one.

It is also worth noting, in this connection, that there is further statutory guidance on sections 2 and 3 of the Act, to which the CPP has some relevance:

Which children and young persons do the CPP apply to?

In short, the CPP apply to ‘looked after’ children, ‘relevant children’ and ‘former relevant children’.

Section 1(2) of the Act defines these RCYP as:

  • ‘looked after children’ within the meaning of section 22(1) of the Children Act 1989, ie children who are in the local authority’s care, or who are provided with accommodation in the exercise of any social services function other than under sections 17 (family services), 23B (accommodation for ‘relevant children’) and 24B (accommodation for ‘former relevant children’ and others) of the Children Act 1989;
  • ‘relevant children’ within section 23A(2) of the Children Act 1989, ie
    • 16- or 17-year old children; who
    • are not ‘looked after’ but were ‘eligible children’ immediately before last ceasing to be ‘looked after’; unless and until
    • they have lived for a continuous period of at least six months with their parent, or a person with parental responsibility for them or (when they were in care) a person named in a child arrangements order (made before the care order was made) as a person with whom the children was to live; although
    • should those arrangements break down and the children cease to live with the person concerned, the children again become  ‘relevant children’; or
    • they are not subject to a care order, but were detained or in hospital when they attained the age of 16 and, immediately before that, had been ‘looked after’ for a period or periods totalling at least 13 weeks, which began after the children reached 14 and did not comprise a series of pre-planned short-term placements;[1]
  • Persons aged under 25 who are ‘former relevant children’ within section 23C(1) of the Children Act 1989, ie
    • children who have been ‘relevant children’ and would still be ‘relevant children if they were under 18, in relation to whom the local authority was the last responsible authority; and
    • children who were being ‘looked after’ by the local authority when they turned 18 and immediately before ceasing to be ‘looked after’ were ‘eligible children’ (see above).

Which local authorities are under the duty?

See section 1(3) of the Act:

  • county councils;
  • district councils;
  • London borough councils;
  • the Common Council of the City of London (in its capacity as a local authority);
  • the Common Council of the Isles of Scilly; and
  • a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009 (these are two or more local authorities that have combined together via an order made by the secretary of state, such as the Greater Manchester Combined Authority, North-East, Liverpool City Region, Sheffield City Region and West Yorkshire).[2]

When and how do the CPP apply?

Section 1(1) of the Act imposes the CPP on local authorities whenever they are ‘carrying out functions’ in relation to RCYP.

A local authority’s ‘functions’ are ‘all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions’: Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1 at 29F.

Accordingly, for all practical purposes, the CPP apply whenever a local authority does anything that could affect RCYP, under its existing responsibilities.

It is important to bear in mind that:

  • first, the CPP do not replace or extend existing responsibilities: ‘The CPP are intended to inform how a local authority carries out those existing responsibilities….’ (paragraph 2.4 of Applying CPP);
  • second, on the other hand, the duty in section 1(1) is expressed as a duty to ‘have regard to the need’ to (for example) ‘act in the best interests, and promote the physical and mental health and well-being’ of RCYP. This betokens that the CPP will be more relevant in some contexts than in others. Paragraph 2.6 of Applying CPP explains that, ‘Local authorities will need to consider the extent to which the CPP are relevant to a particular service area or exercise of a particular function. This should be a reasonable and proportionate evaluation based on the extent to which the service/function is being carried out in relation to looked-after children and/or care leavers’.

 Applying the CPP draws attention to the breadth of the scope of the relevance of the CPP but, also, to the need for a proportionate approach, in that the CPP will not always be relevant to every kind of decision (and not every facet of the CPP will be relevant to every decision that may affect RCYP):

3.4 The services that local authorities deliver can be broadly categorised into 14 different types of service. The service areas where consideration of the CPP are of most relevance are: education, social care, housing, libraries, leisure and recreation, strategic policies (such as health and well-being plans) and local tax collection.

3.5 The seven other types of service provided by local authorities include highways, transport planning, passenger transport, environmental health, waste collection, waste disposal and town and county planning. Looked-after children and care leavers access these services as residents of the local authority area, regardless of their legal status. These services are less likely to require differentiated service for looked-after children or care leavers and therefore the need to have regard to the CPP will either not apply or apply only in a limited way. This is because it may not possible to do anything towards meeting one or more of the identified needs or, although it may be possible, it is not appropriate to do so.

3.6 The way in which a local authority operates its corporate services is important to consider in relation to the principles. For example, the way a local authority acts as an employer can have an impact, such as by ring-fencing apprenticeships for care leavers. These opportunities can be provided in any department of the council regardless of the function it performs. For example, there is no reason why a care leaver could not be take up an apprenticeship opportunity in the highways department. All services can have a role in providing these opportunities for looked-after children and care leavers. This is different from providing a differentiated service, for instance, a differentiated service for looked-after children or care leavers in relation to a particular function such as waste collection.

Annex 3 of Applying CPP identifies the areas where consideration of the CPP:

  • should generally apply, as being education, social care, housing, libraries, leisure and recreation and local taxation collection; and
  • are less likely to apply, as being highways, transport planning, passenger transport, environmental health, waste collection, waste disposal and planning applications.

[1] Children Act 1989 s23A(2); Care Leavers (England) Regulations 2010 SI No 2571 reg 3 and The Children Act 1989 Regulations and Guidance, Volume 3: Planning transition to adulthood for care leavers).

[2] See the relevant Parliamentary Briefing Paper at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06649.

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