Reviewing children’s social care

We have identified some areas of law that our experience and discussion with stakeholders suggest may require reform. They could be potential projects for the Programme. We would like to hear your views about these, and whether you think they should form part of our work over the next few years.

Reviewing children’s social care

Does the law governing social care for children in England need to be reviewed?

The Law Commission’s recent review of adult social care resulted in the Care Act 2014 in England, and contributed significantly to the Social Services and Well-being (Wales) Act 2014 in Wales. While consulting on that project stakeholders told us that many features we had identified as problematic in adult social care also cause problems when care is provided for children and young people. Indeed, in its 2014 Act the Welsh Government legislated beyond our suggested reforms, reforming the provisions which set out children and families’ social care services in Wales (and therefore repealing Part 3 of the Children Act 1989 in its application to Wales).

The provision of social care for children and families in England continues to be governed by Part 3 of the Children Act 1989, which places responsibilities on local authorities to provide support to those who need it. The time may be right to review the operation of Part 3. A law reform project could usefully consider:

• The definition of a disabled child, which may now be discriminatory and out-of-kilter with modern approaches to disability:
• The continuing existence of section 2 of the Chronically Sick and Disabled Children Act 1970 which operates as “rump” legislation and gives parallel rights to services for disabled children;
• The need for clear principles defining how social workers should approach Part 3 cases and the range of factors that should be considered in the “best interests” of the child;
• The operation of the general duty on local authorities to provide services for the care of children and families under section 17 of the Children Act 1989, including the need for statutory eligibility criteria for section 17 services, bringing children’s services into line with the Care Act, and the lack of an explicit statutory duty to assess for section 17 services;
• Clarifying the relationship between the provision of accommodation under sections 17 and 20; and
• Reviewing the provision of accommodation for children in police protection or detention under section 21 of the Children Act 1989.

When it was enacted more than 20 years ago the Children Act 1989 was hailed as a landmark piece of legislation. More than two decades of practice and changing thinking about a child’s needs and the provision of children’s services suggest there may now be a case for review of Part 3 of the Act.

What do you think?

We would welcome views on whether it would be helpful to consider the issues noted above, and whether there are any other issues which the Law Commission should look at in the interests of improving the care that children and families receive and reducing bureaucracy and saving time and cost for local authorities. Please use this form to send us your comments, and email it to programme@lawcommission.gsi.gov.uk.

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